LIBRARY 

OF  THE 

UNIVERSITY  OF  CALIFORNIA, 

RECEIVED    BY   EXCHANGE 

Class 


CORNELL  STUDIES 

IN 

HISTORY  AND  POLITICAL  SCIENCE 


ISSUED    BY 

THE    PRESIDENT   WHITE   SCHOOL 
CORNELL   UNIVERSITY 


VOLUME   III 


THE  JUDICIAL  WORK 


OF    THE 


COMPTROLLER  OF  THE  TREASURY 


AS  COMPARED   WITH   SIMILAR  FUNCTIONS 

IN    THE   GOVERNMENTS   OF 

FRANCE  AND  GERMANY 


A    STUDY    IN    ADMINISTRATIVE    LAW 


THESIS 

Presented  to  the  faculty  of  the  Graduate  School  of  Cornell 

University  in  part  fulfillment  of  the  requirements  for 

the  degree  of  Doctor  of  Philosophy 


r/   BY  -       _  ' 

WILLARD   EUGENE   HOTCHKISS 

\\ 


CORNELL  UNIVERSITY 

ITHACA,  N.  Y. 

1911 


Copyright,  1911 
BY  CORNELL  UNIVERSITY 


VITA. 

WILLARD  EUGENE  HOTCHKISS,  born  Amber,  N.  Y.,  June 
20,  1874.  Graduated  from  High  School,  Ithaca,  N.  Y., 
1893;  Cornell  University,  degree  Ph.B.  1897;  teacher  and 
assistant  superintendent  at  the  George  Junior  Republic, 
Freeville,  N.  Y.,  1897-1900;  fellow  in  the  University  Settle- 
ment, New  York  City,  and  student  in  the  New  York  Law 
School,  1900-1901 ;  graduate  student  Cornell  University, 
1901-1904;  President  White  Fellow  in  Political  and  Social 
Science,  1902-1903;  President  White  Travelling  Fellow. 
1903-1904;  degree  A.M.  1903;  Ph.D.  1905;  instructor, 
Wharton  School  of  Finance  and  Commerce,  University  of 
Pennsylvania,  1904-1905 ;  Assistant  Professor  of  Eco- 
nomics, Northwestern  University,  1905-1907;  Associate 
Professor  of  Economics,  1907-1909;  Professor  of  Eco- 
nomics since  1909;  Dean  of  School  of  Commerce,  North- 
western University,  since  1908;  supervisor  Thirteenth  De- 
cennial Census,  First  District  of  Illinois,  1910. 


227069 


PREFACE 


With  all  the  tendencies  of  our  social  and  institutional 
development  emphasizing  the  need  of  efficient  and  orderly 
administration,  administrative  law  seems  destined  to  de- 
mand constantly  increasing  attention  from  students  of 
American  institutions.  Until  we  have  demonstrated  the 
possibility  of  combining  democratic  government  with  effi- 
cient administration,  municipal,  state  and  federal,  the  forces 
which  regulate  the  course  of  administrative  activity  may 
well  occupy  a  place  of  paramount  importance  in  the  atten- 
tion alike  of  students  and  administrators.  It  is  in  the  hope 
of  contributing  something  toward  a  better  understanding 
of  these  forces  that  this  study  is  undertaken. 

The  author  is  deeply  indebted  to  all  those,  both  in  this 
country  and  in  Europe,  who  have  rendered  him  such  courte- 
ous assistance  in  the  preparation  of  this  work.  Special 
acknowledgment  should  be  made  to  Comptroller  Tracewell 
for  his  helpful  criticisms  and  suggestions.  Through  the 
courtesy  of  M.  Benac,  Director  of  the  general  movement 
of  funds  (directeur  du  movement  general  des  fonds)  in 
Paris  it  has  been  possible  to  observe  at  close  range  the 
treasury  operations  of  France  and  to  utilize  freely  the 
wealth  of  material  available  in  the  French  Ministry  of 
Finance.  M.  Victor  Marce,  Conseillier  referendaire  of  the 
French  Court  of  Accounts,  and  Dr.  Hugo  Preuss  of  the 
University  of  Berlin  have  kindly  read  and  given  able  criti- 
cism of  the  portions  of  the  work  descriptive,  respectively, 
of  French  and  German  institutions.  M.  Marce  most  gen- 
erously made  available  material  contained  in  his  unpub- 


VI  JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

lished  manuscript  upon  the  control  systems  of  various 
countries.  Finally  the  author  desires  to  express  his  great 
appreciation  to  friends  and  teachers  in  the  President  White 
School  of  History  and  Political  Science  at  Cornell  Univer- 
sity for  patient  and  kindly  aid  during  the  whole  progress 
of  the  work. 


TABLE  OF  CONTENTS 


INTRODUCTION 

American  interest  in  administrative  law  of  recent  growth. — 
Administrative  law  considered  foreign  to  Anglo  Saxon 
ideas  of  justice. — Concepts  of  administrative  law. — Conti- 
nental administrative  jurisdiction  based  on  theory  of  sepa- 
ration of  powers. — American  versus  French  concept  of  sepa- 
ration of  powers. — Historical  explanation  of  difference. — 
Establishment  of  administrative  jurisdiction  in  France  a 
legalizing  force. — Administrative  law  common  to  all  con- 
stitutional states. — Administrative  jurisdiction  of  common 
law  courts  in  England  and  America. — Technicality  and  ex- 
penses of  American  judicial  remedies. — Jurisdiction  of  ad- 
ministrative officers. — Development  of  administrative  law 
in  commonwealths. — In  municipalities. — Conditions  favor- 
able to  development  of  federal  administrative  law. — Ad- 
ministrative centralization. — Growth  of  federal  activity  has 
increased  power  of  executive. — Influence  of  insular  gov- 
ernment.— Of  regulative  activities. — Judicial  functions  in 
older  activities  of  the  administration. — Judicial  work  con- 
nected with  treasury  regulation. — Work  centralized  with 
Comptroller  of  the  Treasury. — Comptroller  as  court  of 
appeals. — Comptroller's  jurisdiction  over  claims  against  the 
state. — American  compared  with  French  system  of  pursuing 
claims. — Resume  of  development  of  administrative  activity. 
— Administrative  side  of  government  developed  by  usage. — 
Comptroller's  jurisdiction  with  reference  to  its  actual  judi- 
cial and  administrative  significance 


PART    ONE 

THE   JUDICIAL   WORK   OF   THE    COMPTROLLER 

CHAPTER    I 

ORIGIN  AND  HISTORY  OF  THE  OFFICE  OF  COMPTROLLER 
Office  of  Comptroller  established  in  1778. — The  judicial  work- 
dates  from   1781. — Provisions  of  resolution  of   1781. — Dis- 


X  JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

pines  under  revenue  act  of  1898. — Other  cases  arising  under 
law  of  1898. — What  constitutes  a  broker  under  the  law. — 
Mortgage  tax. — Disclosure  of  liability  to  taxation. — Comp- 
troller's power  to  go  behind  findings  of  Commissioner  of 
Internal  Revenue. — Interpretation  of  tax  on  fermented 
liquors  49~S8 

CHAPTER    V 

COMPTROLLER'S    JURISDICTION    OVER    DISBURSEMENTS    FOR    SERVICES    TO 
THE  GOVERNMENT 

Cases  of  this  nature  too  small  individually  to  justify  suit  at 
law,  but  important  in  the  aggregate. — Classification  of 
cases. — Cases  in  Army  and  Navy  decided  according  to  letter 
of  law. — Principle  illustrated  under  provision  for  extra  pay 
for  services  in  Spanish  War. — Mileage,  general  conditions 
upon  which  allowed. — Travel  to  and  from  insular  posses- 
sions.— Construction  favorable  to  officers. — Bounties  and 
pensions. — Legislative  removal  of  charge  of  desertion. — 
Disabilities  of  deserters  removed  by  private  legislation. — 
Questions  of  payment  in  civil  service. — Recess  appoint- 
ments.— Effect  of  failure  of  Senate  to  confirm. — Fees,  dis- 
tinguished from  reimbursements  such  as  mileage  and  ex- 
penses.— Fees  reported  by  clerks  of  courts. — Clerks  must 
account  for  all  fees  collected. — Specific  provisions  of  law 
concerning  fees  must  be  fulfilled. — Fees  not  usually  de- 
feated by  technicalities. — Action  upon  fee  claims  when  no 
bona  fide  service  has  been  performed. — Clerk  entitled  to 
fee  for  everything  done  by  order  of  court  if  not  made  in 
bad  faith. — Record  of  court  only  prima  facie  evidence. — 
Mileage  in  case  of  civil  officers. — Contested  seats  in  legis- 
lative bodies. — Reimbursement  for  expenses. — Actual  ex- 
penses and  per  diem  in  lieu  of  subsistence. — Questions  re- 
garding expenses  decided  by  strict  adherence  to  rule. — 
Expenses  not  allowed  when  lump  sum  is  given  for  services 
and  expenses. — Expenses  must  be  legitimate. — Must  not  be 
included  in  per  diem  allowance  to  same  officer. — Line  be- 
tween subsistence  and  traveling  expenses. — When  Congress 
leaves  both  compensation  and  expense  of  an  officer  to  be 
fixed  by  the  head  of  a  department  he  may  draw  the  line 
at  his  own  discretion 59-80 


TABLE    OF    CONTENTS  XI 

CHAPTER    VI 

INTERPRETATION   OF  CONTRACTS 

Comptroller's  decisions  regarding  contracts  rest  on  regular  con- 
tract law. — Provisions  for  liquidated  damages. — Flat  boat 
case. — Provisions  interpreted  as  far  as  possible,  on  grounds 
of  equity. — Reasonable  agreements  for  liquidated  damages 
will  be  enforced. — Government  oversight  of  Indian  con- 
tracts.— Effect  of  approval  by  Secretary  of  Interior  and 
Commissioner  of  Indian  Affairs. — Interior  Department  may 
not  waive  statutory  requirements 81-87 

PART    TWO 

COMPARISON    OF    THE    COMPTROLLER'S    WORK    WITH    SIMILAR 
FUNCTIONS    IN    FRANCE    AND    GERMANY 

INTRODUCTION 

Basis  of  comparison  between  Comptroller's  work  and  similar 
functions  in  Europe. — Comptroller's  jurisdiction  over  claims 
the  peculiarly  judicial  branch  of  this  work. — As  chief  audi- 
tor he  performs  work  regarded  on  the  Continent  as  judicial. 
— Continental  idea  of  budgetary  control. — Control  function 
on  the  Continent  culminates  in  Court  of  Account. — List  of 
organs  with  which  comparison  must  be  made. — Broad  scope 
of  activities  in  Continental  countries  parallel  to  those  of 
the  Comptroller. — Study  will  not  seek  exact  parallels  but 
will  consider  system  of  each  country  as  a  whole 88-90 

CHAPTER    VII 
THE  REGULATION  OF  TREASURY  OPERATIONS  IN  FRANCE  AND  GERMANY 

From  continental  viewpoint  Comptroller  is  at  the  head  of  our 
control  system. — French  control  system  model  for  Conti- 
nental countries. — Elements  of  French  control  system. — 
"  Loi  de  reglement." — French  budget  year. — Ineffective  con- 
trol over  authorization  combined  with  effective  control  over 
accounts. — Constitutional  reasons  for  present  situation. — 
Progress  in  regulation  of  disbursements. — Restriction  on 
transfers  from  one  account  to  another. — Relation  of  lack 
of  power  over  authorization  of  expenditures  to  the  power 
of  the  legislature. — Historical  explanation  of  the  situation. 


xii  JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

— Centralization  of  accounts  in  Paris. — Description  of  col- 
lecting and  disbursing  machinery. — Local  officers. — Central 
organs. — Three  divisions  of  Treasury  which  control  mat- 
ters of  fact,  of  form  and  of  budgetary  regularity. — Third 
division  most  important. — Function  of  Director  of  move- 
ment of  funds. — Director  subordinate  to  Finance  Minister 
but  still  the  most  effective  organ  of  control. — General  in- 
spection of  finance. — Commission  for  verifying  ministerial 
accounts. — Court  of  Accounts. — Its  history  and  jurisdiction. 
— Appeal  from  decisions  of  Court  of  Accounts. — Power  of 
court  over  irregular  transactions. — Annual  reports  of  Court 
of  Accounts. — Report  to  the  President. — Influence  on 
budgetary  infractions. — Administrative  control  in  Germany. 
— Prussian  system  most  important. — Control  of  cash  han- 
dled and  of  accounts. — Control  function  of  Finance  Minis- 
ter.— Of  provincial  and  district  governments. — Prussian 
Chamber  of  Accounts. — Status  and  procedure  of  Chamber 
of  Accounts. — Its  power. — Final  report  to  the  king. — In- 
fluence of  report. — Imperial  control  organs. — A  modifica- 
tion of  Prussian  system. — Control  organs  of  smaller  Ger- 
man states. — Comparison  of  French  and  German  systems. — 
France  and  Germany  offer  no  parallel  to  the  Comptroller's 
functions. — Comptroller's  power  greater  than  that  of  any 
of  the  European  organs  of  control 91-118 

CHAPTER    VIII 

AMERICAN    COMPARED   WITH    CONTINENTAL  JURISDICTION    OVER   CLAIMS 
AGAINST  THE  STATE 

Similarity  between  Continental  organs  of  control. — Dissimilarity 
in  their  relation  to  other  organs  of  government. — Conflict 
between  treasury  operations  and  private  rights. — Conti- 
nental principle  of  administrative  jurisdiction. — Extension 
of  administrative  jurisdiction  in  France  as  compared  with 
Prussia. — Close  connection  of  French  courts  with  active 
administration. — Inferior  administrative  courts  in  France 
and  Prussia. — Most  important  differences  in  two  systems 
found  in  organization  of  courts  of  last  resort. — Organiza- 
tion of  the  French  Council  of  State. — Section  for  litigation. 
— Judicial  procedure  of  Council. — Superior  Administrative 
Court  of  Prussia. — Qualification  and  tenure  of  members. — 
Procedure  of  Prussian  Court. — Jurisdictional  line  between 
administrative  and  civil  courts  in  neither  France  nor  Ger- 
many strictly  parallel  to  the  division  between  public  and 


TABLE   OF   CONTENTS  Xlll 

private  acts. — Jurisdiction  in  France  determined  by  Court 
of  Conflicts. — Analysis  of  jurisdiction  of  French  adminis- 
trative courts. — Nearly  all  claims  pursued  before  admin- 
istrative courts. — Analysis  of  jurisdiction  of  Prussian  ad- 
ministrative courts. — Broad  field  of  jurisdiction  for  ordinary 
civil  courts. — Operations  of  the  "  Fiskus  "  within  the  realm 
of  private  law. — German  imperial  law  regarding  conflicts 
between  civil  and  administrative  jurisdiction. — Organization 
of  Prussian  Court  of  Conflicts. — Courts  of  Conflicts  in 
other  states. — Discussion  of  contrasting  principles  of  ad- 
ministrative jurisdiction  in  France  and  Germany. — Com- 
parison of  Continental  with  Anglo  Saxon  systems. — Ad- 
vantages of  close  connection  between  French  courts  and 
active  administration. — Judicial  character  of  French  courts 
improving. — Increasing  permanence  of  tenure  for  members 
of  the  Council  of  State. — American  administrative  law  con- 
strued by  ordinary  courts. — Absence  of  special  courts  tends 
to  encourage  growth  of  judicial  functions  of  administrative 
officers. — Resume  of  judicial  functions  of  the  Comptroller 
in  the  light  of  French  and  German  practice 119-142 


THE  JUDICIAL  WORK  OF  THE  COMP- 
TROLLER OF  THE  TREASURY 

AS  COMPARED  WITH  SIMILAR  FUNCTIONS  IN 

THE  GOVERNMENTS  OF  FRANCE 

AND  GERMANY 


INTRODUCTION 

Political  science  in  the  United  States  during  the  nine- 
teenth century  has  been  concerned  almost  exclusively  with 
the  constitutional  side  of  public  law.1  The  name  admin- 
istrative law  has  been  associated  in  our  minds  with  institu- 
tions peculiar  to  Continental  states.  Anglo  Saxon  concepts 
of  justice  which  demand  that  government  prerogatives  and 
the  affairs  of  individuals  be  regulated  by  the  same  law  and 
the  same  courts,  have  been  thought  to  preclude  the  develop- 
ment of  administrative  law  in  English  speaking  countries.2 

1  Only  within  comparatively  recent  years  has  the  term  administrative 
law  found  a  place  in  our  political  science  vocabulary.  Dr.  Ernst 
Freund,  writing  in  the  Political  Science  Quarterly  as  late  as  1894  (IX. 
p.  404),  called  particular  attention  to  the  "new  term"  used  by  Goodnow 
in  his  "  Comparative  Administrative  Law/'  and  expressed  the  hope  that 
it  might  become  familiar  to  the  public  and  the  legal  profession,  and 
that  the  subject  itself  might  become  a  recognized  branch  of  our  public 
law. 

a  The  neglect  of  this  subject  has  not  been  confined  to  American 
students.  In  England  it  has  been  customary  to  assume  that  administra- 
tive law  is  unknown  in  those  countries  whose  institutions  are  based  on 
the  English  common  law.  Mr.  Dicey  in  the  sixth  edition  of  his  lectures 
on  "  The  Law  of  the  Constitution,"  has  explained  that  what  in  Eng- 
land is  sometimes  called  administrative  law,  is  nothing  more  than 
"official  law"  or  "  governmental  law"  (London  and  New  York,  1902, 
2  I 


2  JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

Acceptance  of  this  term  to  designate  collectively  the  body 
of  rules  and  institutions  under  which  the  public  services 
are  organized  and  administered,  does  not  imply  that  the 
principles  of  administrative  law  are  the  same  in  Anglo 
Saxon  as  in  Continental  states.  Separate  administrative 
courts  in  France  find  their  historical  explanation  in  Mon- 
tesquieu's doctrine  of  the  separation  of  the  powers.  This 
doctrine  received  in  France  a  practical  interpretation  dia- 
metrically opposite  from  that  given  to  it  in  America.  Here 
the  essential  part  of  the  doctrine  was  contained  in  the  idea 
that  the  judiciary  should  be  removed  from  the  influence 
of  the  other  powers,  that  it  might  be  left  free  and  un- 
trammeled  to  apply  one  law  to  the  relations  of  all  citizens, 
whatever  their  personal  or  official  status.  According  to 
the  French  interpretation,  it  was  the  executive  power 

appendix,  pp.  486-487).  The  former,  being  the  law  of  the  civil  service, 
is  composed  of  the  rules  which  determine  the  position  of  the  servants 
of  the  state ;  the  latter  has  arisen  in  connection  with  factory  acts  and 
other  social  legislation  under  which  various  boards  have  been  organized 
to  exercise  regulative  functions. 

"  The  term  droit  administratif ,"  says  Dicey,  "  is  one  of  which 
English  legal  phraseology  supplies  no  proper  equivalent.  The  words 
'  administrative  law,'  which  are  its  most  natural  rendering  are  un- 
known to  English  judges  and  counsel,  and  are  in  themselves  hardly 
intelligible  without  further  explanation.  This  absence  from  our  lan- 
guage of  any  satisfactory  equivalent  for  the  expression  droit  admin- 
istratif  is  significant ;  the  want  of  a  name  arises  at  bottom  from  our 
non-recognition  of  the  thing  itself"  (p.  323). 

The  difficulty  of  rendering  comes  chiefly  from  regarding  the  French 
term  from  an  exclusively  legal  standpoint  as  involving  the  idea  of  an 
administrative  jurisdiction  in  the  peculiar  French  or  Continental  sense. 
This  purely  legal  view  reveals  only  a  part  of  the  idea  contained  in  the 
phrase  droit  administratif.  Administrative  law  may  be  regarded  not 
only  from  the  standpoint  of  law,  but  from  that  of  political  science,  and 
in  this  light  includes  the  ensemble  of  rules  and  principles  governing  the 
organization  and  operation  of  the  public  service.  (For  a  further  expres- 
sion of  the  same  idea  cf.  Hauriou,  Maurice,  ''Precis  de  droit  admin- 
istratif"  3°  ed.,  1897,  p.  235,  also  5e  ed.,  1903,  pp.  190,  ff.) 


INTRODUCTION  3 

which  was  to  be  placed  in  the  foreground  and  made  free 
from  any  interference  from  the  judiciary  in  carrying  out 
its  policies. 

The  historical  reason  for  these  different  interpretations 
is  sufficiently  obvious.  The  American  view  is  in  harmony 
with  the  whole  development  of  English  legal  notions.  In 
France  where  different  ideas  had  prevailed,  experience 
prior  to  the  development  of  separate  administrative  tribu- 
nals had  shown,  that  when  the  judiciary  possessed  power 
to  pass  upon  matters  of  administration,  either  the  executive 
was  unduly  hampered  in  its  policy  by  an  unsympathetic 
interpretation  of  the  law,  or  else  it  dominated  the  judiciary 
in  such  a  way  as  to  destroy  its  character  as  an  organ  of 
justice.  The  withdrawal  from  the  courts  of  all  cases 
involving  questions  of  prerogative  was  a  natural  develop- 
ment under  the  old  regime  and  with  these  cases  already 
controlled  by  the  administration,  the  subsequent  creation 
of  special  courts  for  their  trial  was,  in  form,  at  least,  a 
movement  toward  judicially  regulated  administration.3  The 

"This  change,  which  was  effected  in  1806  by  the  reconstitution  of  the 
Council  of  State  and  its  endowment  with  judicial  functions,  was  at  first 
a  change  of  form  rather  than  of  substance.  In  harmony  with  the 
French  interpretation  of  Montesquieu's  theory,  the  new  jurisdiction 
belonged  exclusively  to  the  executive  branch  of  the  government  and 
was  constituted  to  take  a  broad  view  of  questions  of  government  policy. 
The  fact  that  the  primary  functions  of  the  Council  of  State  were  those 
of  an  advisory  board,  and  that  appointment  and  tenure  were  at  the 
pleasure  of  the  Emperor,  naturally  subjected  its  judicial  work  to  im- 
perial dictation.  The  court  was  therefore  practically  the  administration, 
specially  organized  for  the  purpose  of  judicially  passing  upon  its  own 
acts  and  of  giving  to  arbitrary  power  a  disguise  of  legal  form.  During 
the  progress  of  the  century  the  advisory  functions  of  the  Council  have 
tended  to  become  relatively  to  its  judicial  work,  less  important.  Al- 
though the  independence  of  the  court  has  fluctuated  under  the  several 
regimes,  it  has  been  establishing  a  body  of  legal  precedents  which  are 
developing  into  an  orderly  system  of  jurisprudence. 


4  JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

rais&n  d'etre  of  Continental  administrative  jurisdiction  is 
the  need  of  an  efficient  but  orderly  executive.* 

Absence  of  administrative  tribunals  in  English  speaking 
countries  does  not  imply  absence  of  administrative  preroga- 
tive. Although  a  government  with  monarchical  traditions 
and  a  bureaucratic  administration  possesses  a  personality 
to  which  prerogatives  more  readily  attach,  there  is  in  every 
state,  whatever  its  history  and  constitutional  form,  a  body 
of  privileges  without  which  administration  could  scarcely 
proceed.  Moreover  in  all  states  it  rests,  largely  with  the 
administration,  not  only  to  exercise  such  privileges  but  to 
determine  in  the  first  instance  their  limits.  The  executive 
whether  acting  by  his  own  authority,  in  the  absence  of 
special  law,  or  proceeding  under  the  direction  of  the  legisla- 
ture, is  subject  to  judicial  process  only  when  his  authority 
is  called  in  question. 

When  a  private  individual  on  the  Continent  considers  his 
rights  infringed  by  an  act  of  administration,  his  remedy  is 
regularly  an  appeal  to  the  appropriate  administrative  court. 

*  In  Germany  where  the  doctrine  of  the  separation  of  the  powers  has 
not  been  incorporated  in  public  law,  administrative  jurisdictions,  or- 
ganized more  or  less  according  to  the  French  model,  are  justified  on 
the  ground  that  conflicts  of  public  and  private  interests  cannot  be  settled 
according  to  the  principles  of  abstract  justice  as  applied  between  man 
and  man;  therefore  ordinary  courts  accustomed  to  purely  judicial 
reasoning  are  not  qualified  to  deal  with  questions  in  which  the  broader 
interests  of  the  state  are  involved.  While  the  Germans  have  not  seen 
the  need  of  withdrawing  from  the  ordinary  civil  jurisdiction  the  great 
mass  of  cases  in  which  the  state,  in  some  of  its  various  relations,  is  a 
party,  or  of  making  the  higher  administrative  tribunals  dependent  on 
the  executive,  the  existence  of  separate  courts,  made  up  in  part  of 
persons  trained  for  administrative  duties,  is  a  recognition  of  the  fact 
that  private  right  must  give  way  before  the  broader  considerations  of 
public  interest.  The  functions  of  German  administrative  courts  no  less 
than  of  French,  is  to  exercise  justice  without  curtailing  essential  prerog- 
atives of  the  government. 


INTRODUCTION  5 

In  England  and  America,  analogous  redress  is  granted  by 
the  ordinary  judiciary,  in  form  of  such  writs  as  quo  war- 
ranto,  mandamus,  and  habeas  corpus  issued  more  or  less 
arbitrarily.  Whether  the  court  tends  to  favor  private  claims, 
or  upholds  official  prerogative,  the  purpose  of  a  jurisdiction 
which  carries  authority  to  address  these  several  writs  to 
public  officers,  is  to  harmonize  private  right  with  public 
interest,  and  the  jurisdiction  is  within  the  realm  of  admin- 
istrative law. 

In  America,  expense  and  extreme  technicality  often 
make  an  application  of  the  judicial  remedy  for  grievances 
against  the  administration  impracticable.  Wherever  the 
administration  is  hierarchically  organized,  an  intermediate 
remedy  is  found  in  the  appellate  jurisdiction  exercised  by 
higher  administrative  officers.  When  no  appeal  is  possible 
within  the  administration,  the  suitor  may  demand  a  recon- 
sideration of  his  case,  but  he  usually  accepts  the  final  de- 
cision of  the  officer  or  public  body  involved.  The  juris- 
diction, original  or  appellate,  lodged  in  the  active  admin- 
istration, is  regularly  recognized  as  an  instrument  of  re- 
dress for  private  grievances. 

In  American  state  governments  the  development  of  ad- 
ministrative jurisprudence  was  formerly  precluded  in  large 
measure  by  the  disconnected  character  of  state  administra- 
tion. In  recent  years  the  increased  number  of  appointive 
officers  and  the  creation  of  new  departments  has  in  many 
states  been  bringing  a  larger  measure  of  executive  power 
into  the  hands  of  the  Governor.  The  wide  powers  given 
to  boards  created  to  exercise  the  regulative  functions  of 
the  state  has  moreover  greatly  increased  the  relative  im- 
portance of  the  executive  branch  of  the  government.5 

B  Tne  absolute  futility  of  entrusting  such  functions  £.s  the  care  of  the 
public  health,  the  supervision  of  charities,  the  inspection  of  factories, 


6  JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

These  changes  together  with  the  gradual  substitution  of 
a  professional  for  a  political  civil  service,  are  furnishing 
conditions  which  in  the  future  are  likely  to  be  increasingly 
favorable  to  the  development  of  commonwealth  adminis- 
trative law. 

The  administrative  side  of  government  has  been  develop- 
ing with  particular  rapidity  in  the  local  divisions  of  the 
commonwealth.  Many  of  the  boards  which  are  exercising 
the  regulative  power  of  the  state,  have  in  the  city  admin- 
istration counterparts  which  operate  with  but  slight  super- 
vision from  the  central  authority.  The  problems  of  urban 
life  moreover  give  rise  to  entirely  distinct  and  separate 
activities  which  are  only  found  in  the  municipal  administra- 
tion. Under  the  influence  of  expanding  municipal  func- 
tions, the  executive  branch  of  city  government  has  every- 
where increased  in  relative  importance  and  in  many  cities 
has  developed  into  a  strongly  centralized  power.8  The 

the  regulation  of  banking,  of  insurance,  of  railways,  and  even  the  over- 
sight of  public  works,  to  officers  or  boards  with  narrowly  restricted 
powers,  is  slowly  influencing  our  legislatures  to  endow  the  organs  of 
social  regulation  with  large  jurisdiction  over  private  activities.  The 
courts  have  usually  upheld  such  jurisdictions  as  legitimate  instruments 
for  exercising  the  police  power.  The  powers  recently  granted  to  the 
New  York  Public  Service  Commissions  and  the  Wisconsin  Railway  Com- 
mission are  late  illustrations  of  the  tendency  to  emphasize  the  admin- 
istrative side  of  state  governments. 

8  With  absolute  power  to  appoint  the  heads  of  all  city  departments 
except  the  department  of  finance,  with  a  veto  power  which  can  be  over- 
ruled only  by  a  two  thirds  vote  for  ordinary  ordinances,  and  by  a  three 
fourths  vote  when  the  expenditure  of  money  is  involved,  and  which  is 
final  in  the  case  of  a  franchise,  the  mayor  of  New  York  City  exercises 
under  the  present  charter  a  power  over  the  institutions  and  the  people 
under  his  jurisdiction,  which  is  not  approached  by  that  of  any  common- 
wealth executive  nor  exceeded  by  the  power  of  any  local  officer  in  the 
constitutional  states  of  Europe.  The  French  Prefect  with  his  vast 
power  occupies  a  place  in  the  official  hierarchy  subordinate  to  the 
ministry,  while  the  mayor  is  the  chief  of  a  separate  hierarchy  with  an 


INTRODUCTION  7 

tendency  to  replace  the  term  "  city  government "  with  the 
expression  "  municipal  administration  "  is  indicative  of  the 
change.  New  organs  under  control  of  the  city  administra- 
tion, with  their  wide  range  of  jurisdiction  are  shifting  the 
burden  of  city  government  from  the  municipal  legislature 
to  the  executive.7 

Organic  conditions  favorable  to  the  development  of  a 
consistent  body  of  administrative  law,  have  been  present 
to  a  large  extent  from  the  start  in  the  federal  government. 
Except  for  a  short  period,  the  President  has  always  had  the 
legal  power  effectively  to  control  the  federal  administration. 
Though  legislative  regulation  of  detail  reaches  a  minuteness 
unknown  to  European  governments,  the  growing  volume 
of  administrative  affairs  has  compelled  Congress  to  leave 
more  and  more  the  internal  affairs  of  departments  to  ex- 
ecutive regulation.  Every  extension  of  government  activity 

authority  of  his  own  which  can  be  modified  or  abridged  only  by  legis- 
lative amendment  of  the  city  charter. 

TAt  the  time  this  goes  to  press  (January,  1910),  a  mayor  is  assuming 
office  under  political  auspices  different  from  those  surrounding  a  ma- 
jority of  the  administrative  officers  who  collectively  control  the  budget; 
the  question  is  raised  whether  in  case  of  conflict,  the  mayor  will  be  able 
to  exercise  substantial  independent  power.  As  concerns  administration 
proper  the  question  may  be  answered  by  recalling  the  measure  of  the 
mayor's  power  of  appointment  and  removal.  The  New  York  situation 
does  however  raise  the  question  how  far  it  is  profitable  in  municipal 
affairs  to  consider  the  executive  and  the  legislative  as  something  dis- 
tinct and  separate.  The  same  question  is  raised  with  greater  emphasis 
by  the  introduction  of  the  commission  form  of  government  in  several 
cities.  While  these  occurrences  make  the  New  York  example  less 
typical  perhaps  than  it  appeared  when  the  preceding-  note  was  written 
they  indicate  no  tendency  to  diminish  the  emphasis  on  administration 
in  city  affairs.  Both  the  commission  form  of  government  and  the  large 
power  of  the  mayor  and  other  administrative  officers  in  cities  like  New 
York  magnify  the  executive  by  placing  a  large  part  of  the  legislative 
power  in  a  body  which  is  merely  the  administration  organized  in  col- 
legiate form. 


3  JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

has  augmented  this  tendency  and  increased  the  relative  im- 
portance of  the  executive.8 

With  the  extension  of  federal  activity  a  broad  .admin- 
istrative jurisdiction  is  coming  to  be  regarded  as  both  in- 
evitable and  desirable.  The  nice  balance  between  executive, 
legislature  and  judiciary,  which  has  nominally  characterized 
the  home  government  can  scarcely  apply  in  the  same  spirit 

8  In  connection  with  the  administrative  changes  in  city,  state  and 
nation  it  should  be  noted  that  the  sum  total  of  administrative  develop- 
ment is  a  net  loss  for  the  state  compared  with  the  city  and  the  federal 
government.  While  municipal  and  federal  functions  have  multiplied, 
the  volume  of  affairs  under  the  direct  administration  of  the  common- 
wealth has  remained  relatively  stationary.  With  every  new  concession 
to  the  demand  for  municipal  home  rule,  functions  formerly  performed 
by  the  central  administration  for  the  commonwealth  at  large,  are 
delegated  as  far  as  the  urban  areas  are  concerned,  to  the  several  munic- 
ipal governments.  In  the  acquisition  of  new  functions  moreover,  the 
commonwealth  has  by  no  means  kept  pace  with  the  cities.  The  need 
of  social  and  industrial  regulation  arises  in  many  cases  out  of  the  con- 
ditions of  urban  life  and  is  a  direct  result  of  the  growing  importance  of 
cities.  In  spite  of  the  minute  detail  with  which  legislatures  regulate 
the  exercise  of  local  functions,  the  city  possesses  a  social  identity  which 
the  legislature  in  general  respects.  Notwithstanding  legislative  inter- 
ference so  much  deplored,  the  city  charter  is  regarded  in  the  light  of 
a  constitutional  statute  possessing  a  certain  degree  of  permanence.  The 
representation  of  the  city  as  a  whole  in  the  person  of  the  mayor  re- 
moves in  a  large  measure  the  occasion  for  minute  and  repeated  direc- 
tion which  the  legislature  exercises  over  the  disconnected  branches  of 
the  commonwealth  administration. 

At  the  other  end  of  the  scale,  federal  functions  are  tending  on  the 
whole  to  increase  at  the  expense  of  the  commonwealth.  In  the  larger 
affairs  of  our  modern  industrial  and  social  life  state  boundaries  are 
without  significance.  Commonwealth  regulation  of  problems  national 
in  scope  has  proven  hopelessly  inadequate;  and  the  federal  government, 
under  a  liberal  interpretation  of  its  granted  powers,  is  meeting  the 
situation  by  a  constant  extension  of  its  own  jurisdiction.  Under  these 
circumstances  the  exigency  of  a  thoroughly  efficient  administration,  and 
consequently  of  a  centralization  of  power,  has  not  been  felt  with  the 
same  keenness  in  the  commonwealth  as  in  the  federal  and  municipal 
governments. 


INTRODUCTION  9 

to  the  government  of  the  Philippines.  The  Philippine 
Commission  as  combined  legislature  and  executive,  has  had 
to  exercise  extensive  judicial  functions  and  through  its 
paramount  influence  and  power  of  appointment  has  inevit- 
ably influenced  to  a  certain  extent  the  judiciary  proper. 
Similar  conditions  obtain  in  other  possessions,9  while  in 
the  home  government  the  exigencies  of  social  and  com- 
mercial regulation  have  endowed  administrative  boards 
with  far-reaching  judicial  powers. 

In  connection  with  more  recently  developed  activities, 
whether  in  insular  government  or  industrial  regulation  it 
has  come  to  be  recognized  that  effective  administration 
inevitably  involves  a  large  measure  of  judicial  activity.10 

•Although  the  growth  of  executive  power  has  doubtless  been  en- 
hanced by  the  administration  of  recently  acquired  territory,  it  cannot 
be  assumed  that  confusion  of  administrative  and  judicial  work  is  con- 
fined to  the  insular  possessions.  The  administration  of  the  Continental 
territories  has  always  called  for  the  executive  exercise  of  a  wide  range 
of  judicial  power;  indeed  the  whole  system  of  territorial  courts  has 
been  in  a  measure  a  part  of  the  administration,  since  the  judges,  con- 
trary to  the  constitutional  principles  which  control  the  federal  judiciary, 
are  appointed,  not  for  life  but  for  a  term  of  years  and  are  thus  de- 
pendent upon  the  federal  executive.  The  system  of  Congressional 
courts  has  been  held  by  the  Supreme  Court  not  to  violate  the  Constitu- 
tional provision  that  all  federal  judges  shall  hold  office  during  good 
behavior.  (American  Insurance  Co.  v.  Canter,  i  Peters  511.) 

10  It  is  worthy  of  note  that  although  under  the  old  law  the  Interstate 
Commerce  Commission  was  one  of  our  most  important  administrative 
jurisdictions,  it  was  frequently  assumed  in  the  discussions  on  the  rate 
law  of  1906  that  the  endowment  of  a  branch  of  the  administration  with 
extensive  judicial  powers  was  a  radical  departure  from  established  prac- 
tice. The  most  frequently  reiterated  arguments  in  the  debates  upon 
the  rate  making  power,  especially  upon  the  subsidiary  question  of  a 
court  review,  concerned  the  constitutionality  of  an  attempt  to  confer 
judicial  functions  upon  an  administrative  body.  The  same  discussion 
arose  in  connection  with  federal  meat  inspection  and  has  all  tended  to 
emphasize  the  impossibility  of  entirely  separating  administrative  and 
judicial  functions. 


IO  JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

It  is  not  so  generally  recognized  that  in  the  older  and  more 
fundamental  branches  of  government  activity,  judicial 
powers  of  similar  extent  are  not  wanting.  Such  services 
as  the  pension  bureau,  the  consular  service,  the  customs  and 
internal  revenue  service,  the  patent  office,  the  currency,  and 
many  other  services  call  for  the  exercise  of  a  jurisdiction 
intimately  connected  with  the  private  rights  and  interests 
of  every  citizen  with  whom  they  come  in  contact. 

Among  the  judicial  activities  which  characterize  in  vary- 
ing degree  divers  branches  of  the  federal  administration, 
there  are  none  more  far-reaching  in  their  effect  upon  the 
relation  of  private  citizens  to  the  state,  than  those  per- 
formed in  the  administration  of  the  treasury.  While  other 
organs  hear  and  decide  questions  arising  within  their  own 
peculiar  spheres,  the  treasury  administration,  wherever 
fiscal  operations  are  involved,  holds  jurisdiction  over  all 
departments  of  the  government.  The  organs  of  treasury 
regulation  are  at  the  same  time  organs  for  weighing  and 
determining  the  legality  of  claims  against  the  state,  and  as 
such,  although  their  decisions  may  be  reviewed  by  the 
courts,  exercise  a  most  important  judicial  function. 

This  function  is  centralized  in  the  Comptroller  of  the 
Treasury  who,  as  director  of  the  machinery  of  treasury 
regulation,  superintends  all  disbursements  of  public  funds. 
The  official  subordination  of  the  Comptroller  to  the  Secre- 
tary of  the  Treasury  in  whose  department  his  activities 
center,  has  always  been  to  a  large  extent  nominal.  The 
Comptroller  receives  his  appointment  direct  from  the 
President  and  is  regarded  throughout  the  administration  as 
final  judge  in  matters  of  accounts.  This  position  has  been 
confirmed  by  legislation  enacted  in  1894,  which  specifically 
endows  the  Comptroller,  within  his  sphere,  with  the  attri- 
butes of  a  Court  of  Appeal  for  the  whole  administration. 


INTRODUCTION  M 

Under  this  legislation  the  Comptroller  undoubtedly  exer- 
cises the  most  important  judicial  functions  of  any  single 
officer  in  the  administration.  The  Attorney  General  ad- 
vises and  directs  legal  process ;  the  Comptroller  is  clothed 
with  power  to  decide,  and  every  organ  of  the  administra- 
tion is  bound  by  his  decisions. 

From  the  point  of  view  of  the  individual  citizen  the 
Comptroller's  judicial  powers  are  of  the  utmost  importance 
as  bearing  upon  the  rights  of  persons  who  stand  in  the  posi- 
tion of  creditors  of  the  state.  Though  the  government  by 
establishing  the  Court  of  Claims,  and  subsequently  by  ex- 
tending a  practically  concurrent  jurisdiction  to  circuit  and 
district  courts,  has  furnished  all  claimants  a  legal  remedy 
outside  the  administration,  the  practical  remedy  frequently 
lies  in  an  appeal  from  the  particular  branch  of  the  admin- 
istration, through  the  subordinate  treasury  officers  to  the 
Comptroller. 

Probably  in  no  branch  of  our  government's  activity  have 
the  delays  and  the  expense  of  judicial  proceedings  encour- 
aged the  growth  of  administrative  jurisdiction  to  a  greater 
extent  than  in  the  office  of  the  Comptroller.  In  France, 
where  administrative  courts  possess  a  final  appellate  juris- 
diction over  claims,  comparatively  simple  and  inexpensive 
process  has  made  the  ultimate  legal  remedy  at  the  same 
time  a  practical  remedy.  Under  our  system  with  its  com- 
plete provision  for  appeal  to  the  courts,  the  absolutely  in- 
formal and  unrecognized  jurisdiction  of  a  political  officer, 
has  developed  a  practical  significance  out  of  all  proportion 
to  the  constitutional  position  which  it  occupies  among  our 
organs  of  government. 

Administrative  activity,  following  the  constant  growth  of 
government  functions,  has  in  recent  years  undergone  re- 
markable development.  The  centralized  power  of  the  fed- 


12  JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

eral  executive  has  always  been  essentially  favorable  to  the 
growth  of  an  orderly  system  of  administrative  law,  and 
municipal  governments  with  their  rapidly  increasing  ac- 
tivities are  in  many  cases  beginning  to  exceed  the  federal 
administration  in  centralization.  Even  in  the  common- 
wealths where  the  assumption  of  new  functions  has  been 
more  or  less  neutralized  by  the  encroachment  of  both  munic- 
ipal and  federal  activity,  executive  power  has  been  consid- 
erably increased  by  specific  acquisitions,  and  the  decentrali- 
zation which  characterizes  commonwealth  administration  is 
becoming  in  many  cases  less  absolute. 

Many  of  the  forces  which  tend  to  enhance  the  relative 
importance  of  the  administrative  side  of  government  in 
America  are  found,  not  in  the  letter  of  constitutional  or 
legal  provisions,  but  only  in  the  actual  working  of  govern- 
ment machinery.  Adequate  understanding  of  institutions 
of  government  requires  a  knowledge  of  the  functions  which 
they  perform.  The  following  chapters  therefore  will  aim, 
not  only  to  show  the  historical  development  and  present 
legal  status  of  the  Comptroller's  jurisdiction,  but  will  be 
primarily  concerned  with  setting  forth  the  actual  judicial 
work  which  the  comptroller  performs.  A  comparison  of 
that  work  with  the  methods  of  accomplishing  similar  ends 
in  Continental  states  may  be  expected  to  throw  some  light 
upon  an  important  branch  of  American  administrative  law. 


PART  I 

THE  JUDICIAL  WORK  OF  THE  COMPTROLLER 


CHAPTER   I 

ORIGIN    AND    HISTORY    OF    THE    COMPTROLLER'S    OFFICE 

The  office  of  Comptroller  was  first  created  by  a  resolution 
of  the  Continental  Congress  passed  in  I/78.1  The  judicial 
side  of  his  work  dates  from  1 78 12  when  in  addition  to  the 
supervisory  executive  duties  previously  performed  he  was 
vested  with  appellate  jurisdiction  over  accounts.  The  act 
of  1781  provided  that  any  person  with  a  grievance  might 
appeal  from  the  Auditor's  judgment  to  the  Comptroller 
who  was  directed  to  give  public  hearing  and  render  final 

1].  C.  Sept.  26,  1778,  v.  3,  p.  70.  The  resolution  provided  also  for 
an  Auditor,  a  Treasurer  and  two  Chambers  of  Accounts.  Prior  thereto 
the  duties  of  these  officers  had  devolved  partly  on  an  Auditor  General 
and  a  Treasury  office  of  Accounts  (Res.  Ap.  i,  1776,  J.  C.  v.  i,  p.  302), 
partly  on  the  treasurers  (sometimes  one  and  sometimes  two)  and  partly 
on  a  standing  committee  for  supervising  the  treasury  (Res.  Feb.  17, 
1776,  J.  C.  v.  i,  p.  267).  After  April  i,  1776,  the  standing  committee 
was  known  as  the  Treasury  Board.  The  organization  of  the  Board  was 
modified  in  1779  (Res.  July  30,  J.  C.  v.  3,  p.  330),  by  a  provision  that 
three  of  its  five  members  should  not  be  delegates  to  Congress. 

3  The  utter  confusion  of  the  finances  under  the  various  arrangements 
led  in  1781  to  the  total  reorganization  of  the  Treasury  under  the  Super- 
intendent of  Finance  (Res.  Feb.  7,  and  Sept.  n,  1781,  J.  C.  v.  3,  pp. 
574  and  666).  These  acts  placed  the  Comptroller  at  the  head  of  the 
wfiole  accounting  service  and  next  in  rank  to  the  Superintendent  Un- 
<ler  the  Comptroller  were  a  Register  and  a  Treasurer,  with  the  respec- 
tive duties  of  bookkeeper  and  custodian,  and  Auditors  who  were  to  pass 
upon  accounts  prior  to  their  transmission  to  the  Comptroller. 

13 


14  JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

decision.  Satisfactory  reports  concerning  the  practical 
operation  of  the  law  are  lacking.  The  chaotic  state  of 
finance  administration  during  the  six  and  one  half  years 
it  was  in  force3  was  not  favorable  to  the  establishment  of 
a  definite  jurisdiction;  nevertheless,  judging  from  the  con- 
gressional debates  in  1789,  the  judicial  aspect  of  the  Comp- 
troller's work  seems  to  have  become  familiar. 

In  discussing  the  bill  for  organizing  the  Treasury  under 
the  constitution,4  the  judicial  nature  of  his  duties  was  made 
the  basis  for  suggesting  a  definitely  stipulated  right  of  ap- 
peal from  the  Comptroller's  decisions  to  the  Supreme  Court. 
On  the  same  basis  a  strong  plea  was  made  for  limiting 
executive  control  of  his  tenure.  James  Madison  referred 
to  the  Comptroller's  duties  in  this  language: 

We  shall  easily  discover  they  are  not  purely  of  an  executive 
nature.  .  .  .  The  principal  duty  seems  to  be  deciding  on  the 
lawfulness  and  justice  of  claims  and  accounts  subsisting  be- 
tween the  United  States  and  particular  citizens:  this  partakes 
strongly  of  the  judicial  character,  and  there  may  be  strong 
reasons  why  an  officer  of  this  kind  should  not  hold  his  office 
at  the  pleasure  of  the  executive  branch  of  the  Government.* 

Madison's  views  were  not  reflected  in  the  law  as  passed.8 
No  mention  was  made  of  the  Comptroller's  tenure  and  his 
position  in  the  department  was  similar  to  that  contemplated 
in  the  law  of  1781.  The  essential  difference  in  the  opera- 

8  In  this  connection  the  brief  improvement  under  Superintendent 
Morris  should  be  noted.  The  officers  of  Comptroller  and  Auditor  were 
abolished  on  September  21,  1787  (J.  C.  v.  4,  p.  773),  and  their  duties 
transferred  to  the  Board  of  Treasury,  re-created  in  1784  and  first  re- 
organized in  1787. 

*This  bill  which  became  law  on  September  2,  1789,  followed  in  the 
main  the  lines  laid  down  in  the  law  of  1781. 

5  An.  of  Con.,  i  Cong.  v.  i,  p.  635. 

•Law  of  Sept.  2,  1789,  i  U.  S.  St.,  65. 


ORIGIN    AND    HISTORY   OF    COMPTROLLER'S    OFFICE         I  5 

tion  of  the  two  laws  arose  from  the  nature  of  the  govern- 
ments behind  them.  Assignment  of  duties  in  both  made 
the  Comptroller  and  the  Auditors  the  only  adjudicators  of 
accounts.  The  Secretary  of  the  Treasury  was  directed 
to  sign  warrants  to  be  countersigned  by  the  Comptroller, 
but  he  had  no  authority  to  decide  upon  accounts.  With 
powers  similar  to  those  outlined  in  1781,  the  existence  of  a 
strong  executive  and  the  centralization  of  accounting  in 
the  Department  of  Treasury  gave  opportunity  which  had 
been  lacking  under  the  earlier  law  for  the  systematic  exer- 
cise of  the  Comptroller's  judicial  powers. 

Since  1789  the  chief  obstacle  in  the  way  of  developing 
the  judicial  side  of  the  Comptroller's  work  has  been  the 
failure  of  administrative  reform  to  keep  pace  with  the 
growth  and  congestion  of  public  business.  Until  a  central 
audit  of  accounts  was  in  some  measure  harmonized  with 
decentralization  of  details  in  the  several  departments  by  the 
act  of  1894,  the  Comptrollers  were  constantly  charged  with 
a  mass  of  routine  which  tended  seriously  to  impair  the 
judicial  quality  of  their  final  audit. 

During  the  first  three  years  of  the  government,  the 
Treasury  not  only  regulated  all  disbursements,  but  also 
superintended  the  purchase  of  supplies  in  other  depart- 
ments. The  cumbersomeness  of  the  arrangement  led  in 
I7927  to  the  creation  of  an  accountant  in  the  War  Depart- 
ment who  was  authorized  to  settle  all  departmental  accounts 
submitting  them  quarterly  to  the  Treasury  for  revision. 
Following  the  creation  of  the  Navy  Department  in  I798,8 
a  similar  procedure  was  established  there,  and  in  addition 
the  Secretaries  of  War  and  Navy  were  authorized  to  make 
purchases  for  their  respective  departments.9  The  practice 

1 1  U.  S.  St.,  280. 
•i  u.  s.  St.,  553- 

•i  U.  S.  St.,  610. 


1 6          JUDICIAL  W/DRK  OF  COMPTROLLER  OF  TREASURY 

of  the  department  under  such  acts  as  these10  rendered  the 
Treasury  revision  of  accounts  practically  nugatory.  Ac- 
counting officers  still  continued  to  pass  upon  accounts  as 
before,  but  whereas  those  of  the  Treasury  Department  were 
paid  only  upon  report  of  the  auditor  confirmed  by  the 
Comptroller,  payment  in  other  departments  preceded  such 
revision.  The  subsequent  Treasury  revision  tended  to 
be  in  large  measure  perfunctory  and  gave  the  whole  ar- 
rangement the  effect  of  independent  departmental  regula- 
tion. 

The  laxity  of  this  system  became  apparent  in  the  early 
years  of  the  century  but  it  was  not  until  the  finance  admin- 
istration practically  collapsed  under  strain  of  the  war  of 
1812  that  reforms  could  be  carried  through.  On  April  20, 
I8I6,11  a  senate  resolution  directed  the  heads  of  executive 
departments  to  report  jointly  a  plan  for  more  effective  ac- 
counting. On  the  basis  of  this  report  submitted  in  Decem- 
ber, i8i6,12  an  act  was  passed  aiming  to  leave  the  depart- 
ments a  degree  of  independence  essential  to  the  proper  con- 
duct of  public  business,  and  at  the  same  time  to  furnish 
machinery  by  which  the  provisions  for  a  central  audit  could 
be  enforced.18  The  act  provided  for  an  additional  Comp- 
troller and  four  additional  Auditors.14  The  Auditors  be- 

10  In  the  law  establishing  the  land  office  in  the  Treasury  Department 
in  1812   (2  U.  S.  St.,  716),  provision  was  made  for  the  settlement  of 
accounts   in  the   Commissioners's   office,   to   be  transmitted   directly  to 
the  Comptroller.      The  same  provision  was  maintained  when  the  office 
was  transferred  to  the  Interior  Department  in  1849  (9  U.  S.  St.,  395). 

11  An.  of  Con.,  v.  29,  p.  331. 

"An.  of  Con.,  v.  30,  p.  23.  Report  signed  by  James  Monroe,  William 
H.  Crawford,  George  Graham,  and  B.  W.  Crowninshield. 

"An.  of  Con.,  v.  30,  pp.  48  and  1038. 

14  3  U.  S.  St.,  366.  Another  provision  of  the  law  of  1817  gave  the 
heads  of  the  several  departments  power  to  sign  warrants  provided  they 
were  registered  by  the  appropriate  Auditor  and  countersigned  by  the 


ORIGIN    AND    HISTORY    OF   COMPTROLLER'S   OFFICE         I/ 

came,  and  still  remain  officers  of  the  Department  of 
Treasury.15 

While  the  law  of  1817  established  the  fundamental  rela- 
tion of  the  Treasury  to  departmental  accounts  it  did  not 
provide  a  permanently  efficient  system  of  audit.  When 
the  great  mass  of  payments  came  to  be  made  by  disbursing 
officers  under  bond,  accounts  instead  of  undergoing  two 
revisions  were  subjected  to  three  or  four.  The  real  work 
was  performed  by  the  disbursing  officers  and  in  the  bureaus 
of  the  executive  departments,  while  the  final  responsibility 
was  with  the  officers  of  the  Treasury.  As  the  volume  of 
business  increased,  the  necessity  of  revising  all  accounts 
burdened  the  Comptroller  with  a  mass  of  mechanical  work 
which  restricted  him  to  a  mere  perfunctory  examination. 

In  1842  after  flagrant  defalcations  had  been  unearthed,16 
a  select  committee  on  retrenchment,  recognizing  the  incor- 
rectness of  multiple  responsibility,  recommended  that  the 

Comptroller.  In  1822  this  arrangement  was  modified  by  a  provision 
that  all  warrants  should  be  drawn  by  the  Secretary  of  the  Treasury 
upon  requisition  of  the  head  of  the  department  concerned  (3  U.  S.  St., 
689). 

A  recommendation  of  the  report,  that  a  solicitor  be  appointed  to 
relieve  the  Comptroller  from  the  duty  of  recovering  debts,  was  not  acted 
upon  in  1817.  The  office  of  Solicitor  was  subsequently  created  in  1830 
(4  U.  S.  St.,  414),  and  transfered  to  the  Department  of  Justice  in  1870 
(16  U.  S.  St.,  162). 

"The  bill  for  reorganizing  the  Post  Office  Department  in  1836,  as 
originally  drawn,  provided  that  the  sixth  auditor  should  be  under  the 
direction  of  the  Postmaster  General,  the  object  being  to  keep  the  post 
office  funds  and  accounts  distinct  from  the  general  funds  of  the  country. 
After  considerable  debate,  a  motion  to  place  the  Auditor  under  the 
direction  of  the  Secretary  of  the  Treasury  prevailed  (Con.  Debates,  v. 
12,  Pt.  3,  P.  3779;  5  U.  S.  St.,  81). 

18  For  the  relation  of  Treasury  officers  to  fiscal  irregularities,  cf.  dis- 
cussion of  Swartwout  defalcation, — von  Hoist,  "  Const.  Hist,  of  U.  S.," 
II.  1823-1846,  pp.  349  ff. ;  cf.  Colton,  "Life  and  Times  of  Henry  Clay" 
II.  pp.  396  ff. 

3 


1 8          JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

first  Comptroller  be  relieved  of  all  administrative  duties 
and  devote  himself  exclusively  to  the  duties  of  final  judge.17 
No  action  of  this  nature  was  taken  but  in  1849  provision 
was  made  for  a  Commissioner  of  Customs  who  was  vir- 
tually a  third  Comptroller.18  Aside  from  provisions  from 
time  to  time  for  more  stringent  accounting  by  disbursing 
officers19  no  important  administrative  reforms  were  ac- 
complished until  1894.  Meanwhile  the  enormous  increase 
of  business  had  so  delayed  final  settlements  that  advances 
to  disbursing  officers  were  'frequently  many  times  the 
amount  of  their  bonds.  The  only  effective  audit  under 
these  conditions  was  conducted  in  the  bureaus  of  the  ex- 
ecutive departments.  The  Comptrollers,  overburdened 
with  the  duty  of  going  through  a  mass  of  accounts,  fre- 
quently years  after  the  disbursements  had  been  made,  were 
in  no  position  to  furnish  a  valuable  check  upon  expendi- 
tures. 

In  his  last  annual  message  in  1892,  Secretary  Foster 
urged  the  need  of  thoroughgoing  reform.20  Upon  his 
recommendation  a  committee  was  appointed  to  investigate 
and  report  to  the  next  session  of  Congress.21  On  the  basis 
of  information  obtained  from  a  census  of  all  the  executive 
departments,  the  Commission's  experts  recommended  a 
complete  reorganization  of  accounting  and  auditing.22  Its 
plan  was  embodied  in  a  bill  and  with  but  slight  changes 

"Doc.  27.  Con.  2.  Sess.  H.  R.  4,  Rep.  741,  p.  13. 

18  9  U.  S.  St.,  395. 

19 12  U.  S.  St.,  5931  14  U.  S.  St.,  571. 

20  Doc.  52.  Con.  2.  Sess.  H.  E.  23,  p.  Ixxviii. 

31  This  Commission,  known  from  its  chairman  as  the  "  Dockery  Com- 
mission "  was  made  up  of  Senators  Cockrell,  Jones  and  Cullom  ap- 
pointed by  the  President  of  the  Senate  and  Representatives  Dockery, 
Richardson  and  Dingley  appointed  by  the  Speaker. 

22  The  work  was  in  immediate  charge  of  Mr.  J.  W.  Reinhart,  Vice- 
President  of  the  Atchison,  Topeka  and  Santa  Fe  Railroad. 


ORIGIN    AND    HISTORY    OF   COMPTROLLER'S   OFFICE         19. 

became  law  on  July  31,  1894.  By  this  act  known  as  the 
"  Dockery  Law  "2S  the  executive  duties  of  the  Comptrollers 
were  for  the  most  part  devolved  on  other  officers;  their 
judicial  functions  were  given  specific  legislative  sanction 
and  united  in  a  single  office.24 

The  law  of  1894  abolished  the  offices  of  first  and  second 
Comptroller,  deputy  first  and  second  Comptroller  and  Com- 
missioner of  Customs  and  provided  for  a  Comptroller  and 
an  assistant  Comptroller,  the  latter  with  power  to  counter- 
sign warrants,  but  only  under  the  Comptroller's  authority 
and  direction.  The  purely  administrative  duties  of  the 
offices  abolished  were  transferred  to  the  respective  Auditors 
whose  titles  were  changed  to  indicate  the  work  actually 
performed.25  The  findings  of  the  Auditors  under  this  law 
are  final  unless  appeal  is  taken  to  the  Comptroller.26 

23  The  original  bill  introduced  in  the  House  was  never  acted  on  by  the 
senate ;  its  essential  provisions  were  attached  as  a  rider  to  the  legisla- 
tive, executive  and  judicial  appropriation  bill  and  in  that  form  received 
the  approval  of  President  Cleveland   (28  U.  S.   St.,  205-211,  ch.   174, 
sects.  3-24). 

24  Such  sanction  had  in  a  measure  been  given  in  1868  by  a  law  which 
specified   explicitly   that  balances   stated   by   an   Auditor   and   properly 
certified   by    a    Comptroller   should   be   final    and   conclusive   upon    the 
heads  of  departments  (15  U.  S.  St.,  54).    The  purpose  of  this  law  was 
to   relieve   an   uncertainty    arising   out   of   a   decision   of   the    Supreme 
Court  in  U.  S.  v.  Jones  (18  Howard  92),  to  the  effect  that  accounting 
officers  could  not  question  decisions  reached  by  heads  of  executive  de- 
partments.     This  principle  was  never  fully  accepted  by  the  officers  of 
the   Treasury.      In    1856    Secretary   Guthrie   had   instructed   the   fourth 
Auditor  that  it  should  be  held  to  apply  only  to  the  particular  case  and 
not  considered  as  changing  the  law.     (Cf.  Renick,   E.  I.,  in  Pol.  Sci. 
Quart.,  VI.  p.  277.)     The  law  of  1868  was  a  statutory  confirmation  of  a 
principle  already  established  in  actual  practice. 

26  From  first,  second,  third,  fourth,  fifth  and  sixth,  to  Auditor  for  the 
Treasury,  for  the  War,  for  the  Interior,  for  the  Navy,  for  the  State  and 
other  Departments,  and  for  the  Post  Office  Department. 

26  Several  important  changes  in  administrative  procedure  were  insti- 
tuted. The  Division  of  Bookkeeping  and  Warrants,  enlarged  from  the 


2O         JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

Provisions  for  appeal  permit  any  person  whose  account 
has  been  settled  by  an  Auditor,  the  head  of  an  executive 
department  or  of  any  board,  commission  or  other  establish- 
ment not  subject  to  an  executive  department,  to  appeal  to 
the  Comptroller  within  one  year  from  date  of  settlement. 
Within  the  same  time  the  Comptroller  may  of  his  own 
motion  revise  any  account.  After  the  Comptroller's  de- 
cision is  rendered,  the  Secretary  of  the  Treasury  may  sus- 
pend payment  if  in  his  judgment  the  government  interests 
so  require,  and  demand  a  reexamination.  The  Secretary 
acquires  by  such  action  no  jurisdiction  over  the  case,  the 
second  examination  like  the  first  being  wholly  the  work  of 

old  Division  of  Warrants,  Estimates  and  Appropriations,  and  kept  in 
the  office  of  the  Secretary,  became  the  official  record  bureau.  The 
duties  of  the  register  were  left  to  be  prescribed  by  the  Secretary.  For 
advancing  money,  requisition  made  on  the  treasury  is  sent  to  the 
Division  of  Bookkeeping  and  Warrants  to  ascertain  the  condition  of 
the  account.  Thence  it  goes  to  the  appropriate  Auditor  who  acts  ac- 
cording to  facts  submitted.  If  approved  the  requisition  is  returned  to 
the  division  of  bookkeeping  and  warrants,  where  warrant  is  issued  and 
sent  with  the  requisition  to  the  Secretary  and  the  Comptroller  for  signa- 
ture, thence  to  the  Treasurer  who  issues  draft  and  returns  the  requisi- 
tion to  the  Auditor  for  filing.  The  statute  directs  Auditors  to  disap- 
prove requisitions  of  officers  delinquent  in  their  accounts,  his  decision 
being  subject  to  reversal  by  the  Secretary,  whose  duty  it  is  to  prescribe 
rules  for  insuring  prompt  settlement  and  to  report  annually  to  Congress 
all  officers  who  have  been  delinquent  during  the  preceding  year. 

Accounts  for  postal  revenues,  like  all  others,  are  received  by  the 
proper  auditor  but  balances  from  postal  revenues  are  certified  not  to 
the  division  of  bookkeeping  and  warrants,  but  to  the  Postmaster  General. 
The  policy  of  regarding  the  Post  Office  Department  as  distinct  from 
other  activities  of  the  Government  has  been  steadily  followed.  The 
only  connection  between  the  Treasury  and  the  Post  Office  Departments 
arises  from  the  common  relation  to  the  Comptroller  and  from  his 
jurisdiction  on  appeal.  (Cf.  note  15.) 

Returns  relative  to  the  public  lands  are  still  made  to  the  Commis- 
sioner of  the  General  Land  Office.  Accounts  of  this  office  which  were 
formerly  sent  from  the  Commissioner  direct  to  the  first  Comptroller  are 
now  audited  by  the  Auditor  for  the  Interior  Department.  (Cf.  note  10.) 


ORIGIN    AND    HISTORY   OF   COMPTROLLER'S   OFFICE         21 

the  Comptroller.  The  final  decision  of  the  Comptroller 
is  conclusive  upon  the  executive  branch  of  the  government. 

The  Comptroller  exercises  not  only  an  appellate  but  also 
an  authoritative  advisory  jurisdiction.  Disbursing  officers, 
heads  of  executive  departments  or  of  boards,  commissions 
or  establishments  not  subject  to  an  executive  department, 
may  apply  to  the  Comptroller  for  a  decision  upon  any 
question  involving  a  prospective  payment  and  the  decision 
rendered  binds  not  only  the  Auditor  but  the  Comptroller 
himself  should  the  case  come  to  him  on  appeal.  Auditors 
moreover,  when  making  an  original  construction  of  statutes 
or  modifying  an  existing  construction,  must  forthwith  re- 
port to  the  Comptroller  and  suspend  payment  of  any  items 
affected,  until  the  Comptroller  has  signified  his  approval, 
disapproval  or  modification  of  the  construction  adopted. 

Without  establishing  any  new  principles  of  law,  the  act 
of  1894  has  given  the  Comptroller's  jurisdiction  a  twofold 
recognition.  Judicial  functions  exercised  to  a  greater  or 
less  extent  since  the  foundation  of  the  government,  have 
now  received  specific  and  comprehensive  definition,  and  of 
even  more  importance,  by  removing  the  burden  of  executive 
routine,  and  confining  the  Comptroller's  work  to  cases 
which  demand  legal  construction,  the  law  for  the  first  time 
recognized  the  Comptroller's  judicial  work  as  the  primary 
and  well  nigh  exclusive  function  of  his  office. 


CHAPTER   II 
THE  COMPTROLLER'S  JURISDICTION 

Within  his  legal  sphere  the  Comptroller  renders  decisions 
which  are  final  and  conclusive  upon  the  executive  branch 
of  the  government.  Coordinately  he  is  an  executive  officer 
of  the  Treasury  Department  and  as  such  is  nominally  sub- 
ordinate to  the  Secretary  of  the  Treasury.  Although  in 
his  judicial  capacity  he  is  legally  independent  of  the  Secre- 
tary, the  relation  between  the  two  officers  is  important  in 
determining  the  actual  degree  of  independence  with  which 
the  Comptroller  operates. 

Long  before  the  more  active  administrative  duties  of  the 
Comptroller  were  transferred  to  other  officers,  it  had  been 
recognized  that  subordination  in  these  matters  might  tend 
to  make  the  Comptroller  less  independent  in  the  exercise 
of  his  judicial  functions.1  The  danger  of  such  an  influence 

1 27th  Con.,  2.  sess.,  H.  R.  v.  4,  Rep.  741,  p.  n. 

"  The  union  of  administrative  and  accounting  duties  in  the  hands  of 
the  First  Comptroller,  the  committee  regard  as  peculiarly  objectionable. 
As  the  final  judge  in  matters  of  accounts,  he  was  designed  to  be  inde- 
pendent of  the  Secretary ;  but,  in  superintending  the  customs,  he  ap- 
pears to  be  entirely  subject  to  his  control.  The  tendency  of  this  sub- 
mission in  one  part  of  his  duties  is  but  too  well  calculated  to  impair  his 
independence  in  the  other ;  and  it  is  probable  that,  in  the  practical 
operations  of  his  office,  the  distinction  between  his  two  classes  of 
duties  is  apt  to  be  overlooked.  The  general  tendency  of  the  system 
has  doubtless  been  to  give  a  prevailing  influence,  touching  even  upon 
accounts,  to  the  administrative  branches  of  the  Department  over  the 
accounting.  The  higher  salary  of  the  Secretary,  his  political  position 
and  connexions,  and  his  access  to  the  President,  contribute  to  this 
influence,  and  doubtless  to  disincline  the  accounting  officers  to  resist  his 
authority,  whenever  he  is  inclined  to  assume  the  responsibility  of  de- 

22 


THE  COMPTROLLER'S  JURISDICTION  23 

is  in  large  measure  obviated  by  the  essential  difference  in 
the  nature  of  the  two  officers'  executive  functions.  This 
difference  was  recognized  in  France  at  one  time  by  provision 
both  for  a  Ministry  of  Finance  and  a  Ministry  of  Treasury, 
and  at  present  in  all  important  European  countries  the  two 
sorts  of  duties,  though  performed  in  the  same  ministry  are 
kept  administratively  distinct.  In  our  own  government 
the  Secretary's  duties  as  Finance  Minister,  in  spite  of  the 
large  part  played  by  the  Ways  and  Means  Committee  of 
Congress  in  providing  revenue,  have  so  increased  with  the 
growth  of  departmental  business  as  completely  to  over- 
shadow his  relation  to  the  disbursing  machinery  of  the  gov- 
ernment. Although  by  virtue  of  his  position  in  the  ad- 
ministrative hierarchy  the  Secretary  still  nominally  super- 
intends the  machinery  of  disbursements,  his  actual  directive 
activities  in  that  branch  of  the  department's  work  are  of 
little  importance.  The  actual  duties  of  a  Minister  of  the 
Treasury  are  performed  by  the  Comptroller  who  holds  his 
position  not  by  the  appointment  of  the  Secretary  but  direct 
from  the  President.  While  the  President  would  doubtless 

cision.  This  office  should  be  restored  to  what  it  was,  or  was  intended 
to  be — the  final  umpire  in  matters  of  accounts — and  should  be  freed 
from  the  administrative  duties  in  connexion  with  the  customs." 

A  similar  danger  was  referred  to  by  Senator  Jefferson  Davis  in  the 
debate  over  the  creation  of  the  Interior  Department  in  1849. 

"  No  feature,"  said  Senator  Davis,  "  is  more  common  to  our  form 
of  Government  that  its  checks  and  balances — one  department  checking 
and  guarding  the  other.  ...  It  was  a  departure  from  that  great  prin- 
ciple to  put  in  the  same  hands  in  the  organization  of  our  Government 
the  collection  and  disbursement  of  the  revenue.  The  one  should  check 
the  other.  The  officer  who  is  charged  with  finding  the  ways  and  means 
to  carry  on  the  Government  properly,  never  should  have  been  charged 
with  the  disbursement  of  those  means.  And  this  division  of  the 
Treasury  Department,  I  consider  essential  to  rigid  economy  and  just 
accountability  which  belongs  to  our  Government."  (Congressional 
Globe,  3oth  Con.,  2  sess.,  p.  670.) 


24         JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

avoid  the  appointment  of  a  person  whose  relations  with 
the  Secretary  were  seriously  inharmonious,  there  is  nothing 
to  show  that  in  recent  years  the  Comptrollers  have  been 
in  any  sense  overawed  by  the  Secretary's  superior  position. 

The  Comptroller's  independence  and  the  esteem  in  which 
the  office  is  held  were  doubtless  somewhat  enhanced  by  the 
publication  of  the  first  Comptroller's  reports  which  began 
in  i88o.2  When,  in  1894,  the  Dockery  Act  replaced  the 
several  Comptrollers3  by  a  single  one,  emphasis  was  given 
to  the  independent  position  of  the  Comptroller  simply  as 
an  executive  officer,  and  his  definite  recognition  as  final 
judge  in  matters  of  public  disbursement  gave  his  office  a 
judicial  dignity  which  the  Secretary  of  the  Treasury  as 
well  as  other  officers  of  the  executive  departments  is  likely 
to  respect.  This  circumstance  may  be  fairly  expected  to 
prevent  permanently  any  influence,  to  which  the  Comp- 
troller's position  as  an  administrative  officer  might  seem 
to  subject  him,  from  seriously  impairing  the  stipulated 
finality  of  his  decisions  upon  officers  of  the  executive  de- 
partments. 

In  defining  the  Comptroller's  jurisdiction  his  relation  to 
the  Attorney  General  should  receive  special  attention. 
Before  1894  it  was  the  Comptroller's  sole  function  to  act 
and  decide  while  the  Attorney  General  alone  was  the  legal 
advisor  of  the  government.  Although  by  following  the  ap- 
parent intent  of  the  law  in  confining  advice  to  the  heads  of 
executive  departments4  the  Attorney  General  even  before 

2  After  the  appearance  of  six  volumes,  1880  to  1885  inclusive,  with 
the  exception  of  a  small  volume,  1893  to  September  1894,  publication 
ceased  until  the  inauguration  of  the  new  organization  in  October,  1894. 
Since  then  there  have  been  no  interruptions. 

*The  Commissioner  of  Customs  performed  essentially  the  duties  of 
a  Comptroller. 

4  Rev.  St.,  sec.  356. 


THE  COMPTROLLER'S  JURISDICTION  25 

the  law  of  1894  would  have  been  excluded  from  that  field 
which  the  Comptrollers  occupied  independently  of  the 
Secretary,  it  was  generally  regarded  as  within  the  Attorney 
General's  province  to  give  opinions  upon  matters  to  be 
passed  upon  by  the  accounting  officers  of  the  Treasury.5 
At  the  same  time  the  practice  grew  of  seeking  in  advance 
advice  from  the  Comptrollers  upon  matters  which  were 
likely  to  come  before  them  for  decision.  These  two  func- 
tions which  prior  to  1894  were  legally  distinct  and.  com- 
mitted to  different  hands  became  in  practice  to  a  large  ex- 
tent confused. 

Such  a  situation  was  well  calculated  to  give  occasion  for 
conflicts  of  jurisdiction.  The  Comptrollers'  decisions  were 
conclusive  upon  the  executive  branch  of  the  government 
and  there  seems  to  be  strong  ground  for  regarding  the 
advice  of  the  Attorney  General  as  having  the  force  of  law 
until  overruled  by  the  courts.  This  view  comes  out  clearly 

5  For  a  different  practice  note  the  following  opinion  of  Atty.  Gen. 
Bates  in  1863,  replying  to  a  request  for  aid  in  making  a  decision: 
"  By  long  and  unbroken  construction  and  practice,  it  has  been  settled 
that  the  Attorney  General  acts.  .  .  .  simply  as  the  law  adviser  of  the 
President  and  Heads  of  Departments.  ...  He  is  not  the  official  legal 
adviser  of  any  subordinate  officer  of  any  department,  except  the  Solicitor 
of  the  Treasury.  It  is  true  that  he  often  gives  to  Heads  of  Depart- 
ments advice  and  opinions  upon  questions  arising  in  the  bureaux  of 
their  respective  departments,  but  such  advice  and  opinions  are  intended 
to  aid  only  the  judgment  of  the  Secretary  himself  in  deciding  such 
questions.  To  enlarge  the  rule  beyond  this  extent  would  not  only  be 
unwarranted  by  law,  but  would  convert  the  Attorney  General's  office 
into  a  sort  of  general  appellate  court,  where  dissatisfied  claimants  might 
seek  relief  from  adverse  decisions,  and  subordinate  executive  officers 
find  a  way  of  escape  from  official  labor  and  responsibility.  .  .  .  [It] 
would  be  clearly  wrong  to  give  an  opinion  in  a  case  which  not  only 
is  not  before  the  Secretary  of  the  Treasury,  but  which  evidently  cannot 
reach  him.  My  opinion  would  simply  be  advice  to  the  Auditor  and  not 
t-»  the  Secretary,  and  this  I  have  no  power  by  law  to  give"  (n  Op. 
A.  G.,  5). 


26          JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

in  an  opinion  given  by  Attorney  General  Olney  about  a 
year  before  the  law  of  1894  went  into  operation. 

I  do  not  think,  said  the  Attorney  General,  that  the  First 
or  Second  Comptroller  or  the  Commissioner  of  Customs  has 
any  legal  status  as  an  advisor  upon  legal  questions.  These 
gentlemen  are  accounting  officers  holding  great  power,  but  their 
function  is  to  take  action,  not  to  advise  others  how  to  act. 
Each  is  the  trial  judge  within  his  own  sphere.  ...  The  act  of 
1870  ...  provided  that  written  opinions  prepared  by  a  subor- 
dinate in  the  Department  may  be  approved  by  the  Attorney 
General,  and  that  "  such  approval  so  endorsed  thereon  shall 
give  the  opinion  the  same  force  and  effect  as  belong  to  the 
opinions  of  the  Attorney  General."  This  provision  is  embraced 
in  substantially  the  same  language  in  section  3581  of  the 
revised  statutes.  Evidently,  therefore,  Congress  contemplates 
that  the  official  opinions  signed  or  endorsed  in  writing  by  the 
Attorney  General  shall  have  some  actual  and  practical  force. 
Congress's  intention  cannot  be  doubted  that  administrative  offi- 
cers should  regard  them  as  law  until  withdrawn  by  the  Attorney 
General  or  overruled  by  the  courts,  thus  confirming  the  view 
which  generally  prevailed,  though  sometimes  hesitatingly  ex- 
pressed, previous  to  the  establishment  of  the  Department  of 
Justice.6 

However  such  a  force  given  to  the  Attorney  General's 
opinions  may  have  affected  the  prerogative  of  the  Comp- 
troller prior  to  the  law  of  July  1894,  the  situation  was 
essentially  different  as  soon  as  that  statute  was  in  force. 
The  Comptroller  was  by  that  act  not  only  confirmed  in  his 
position  of  judge  but  was  also  given  the  legal  status  of 
advisor  to  the  heads  of  executive  departments  and  other 
establishments  and  to  disbursing  and  accounting  officers 
upon  questions  of  law  concerning  prospective  disburse- 
ments. This  status  moreover  has  been  definitely  recog- 

*  20  Op.  A.  G.,  655. 


THE  COMPTROLLER'S  JURISDICTION  27 

nized  in  an  abundance  of  cases  by  all  of  the  successive 
Attorneys  General  since  the  law  was  enacted.7 

The  fact  that  cases  of  this  sort  continued  to  be  referred 
to  the  Attorney  General,  is  to  be  attributed  largely  to  the 
effect  of  long  continued  practice.  Many  of  the  requests 
emanating  from  the  Secretary  of  the  Treasury  are  joined 
in  by  the  Comptroller  himself  and  indicate  merely  a  natural 
respect  for  the  high  legal  authority  of  the  Attorney  Gen- 
eral and  a  desire  to  benefit  by  it  in  reaching  a  difficult  de- 
cision. The  independent  position  which  the  Comptroller 
holds,  the  fact  that  his  subordination  to  the  Secretary  is 

1  The  first  reported  opinion  of  this  sort  was  given  by  Attorney  Gen- 
eral Olney  on  May  22,  1895.  It  is  interesting  to  note  that  in  pointing 
out  the  change  of  advisory  jurisdiction  made  by  the  law  of  July  1894, 
Attorney  General  Olney  contemplated  retention  of  jurisdiction  by 
the  Attorney  General  in  matters  of  great  importance.  To  a  request 
from  the  Secretary  of  the  Treasury  he  replied  in  part :  "  By  the  act 
of  July  31,  1894,  .  .  .  the  questions  which  you  now  ask  me  could  have 
been  asked  of  the  Comptroller  of  the  Treasury.  ...  I  think  that  they 
belong  to  a  class  of  questions  which,  now  that  an  opinion  of  the 
Comptroller  forms  a  complete  protection,  should  no  longer  be  asked 
of  the  Attorney  General,  at  least  except  in  matters  of  great  importance. 
They  are  questions  which  the  Comptroller,  by  his  greater  experience, 
is  better  qualified  to  pass  upon,  and  it  is  desirable  to  avoid  any  possible 
conflict  of  precedents"  (21  Op.  A.  G.,  178).  On  the  day  following  the 
delivery  of  this  opinion,  in  consideration  of  the  fact  that  the  Comp- 
troller joined  the  Secretary  in  asking  his  advice,  Attorney  General 
Olney  consented  to  give  an  opinion  upon  an  interpretation  made  by  the 
Comptroller,  as  coming  under  the  reservation  he  had  made  the  previous 
day  for  cases  of  great  importance.  In  this  case,  however,  he  con- 
curred entirely  in  the  conclusions  reached  by  the  Comptroller  (ibid., 
182).  About  two  weeks  later,  in  replying  to  a  request  from  the 
Secretary  of  the  Treasury  regarding  the  right  to  refund  certain  duties 
collected  by  mistake,  the  stand  taken  in  the  first  case  was  reiterated  and 
an  opinion  accordingly  denied  (ibid.,  188).  The  fact  that  later  opinions 
of  Attorneys  General  make  no  exception  of  cases  of  great  importance 
seems  sufficient  ground  for  concluding  that  the  reservation  is  no  longer 
upheld  (22  Op.  A.  G.,  581  ;  23  Op.  A.  G.,  468  and  586). 


28          JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

merely  nominal,  the  consciousness  which  he  undoubtedly 
possesses  of  the  judicial  character  of  his  office,  makes  it 
seem  extremely  improbable  that  his  action  in  such  cases  is 
the  result  of  secretarial  influence.  The  sounder  conclusion 
is  that  a  joint  request  of  the  two  officers  represents  a 
genuine  cooperation  to  insure  a  correct  decision.  The 
decision  when  rendered  is  that  of  the  Comptroller  alone. 

While  the  opinions  of  the  Attorney  General  concerning 
matters  of  expenditure  are  largely  gratuitous,  cases  arise 
in  which,  while  passing  upon  other  points  of  law  the  At- 
torney General  expresses,  by  implication  at  least,  opinions 
upon  matters  properly  within  the  province  of  the  Comp- 
troller. A  typical  case  arose  under  the  law  making  pro- 
vision for  the  twelfth  census.8  The  act  so  enlarged  the 
powers  of  the  Director  of  the  Census  as  compared  with 
those  exercised  by  the  Superintendent  of  the  Eleventh 
Census  that  question  arose  whether  the  Secretary's  ap- 
proval should  be  necessary  for  appointments  and  for  the 
execution  of  plans  formulated  by  the  Director.  This  ques- 
tion the  Attorney  General  answered  squarely  in  the  nega- 
tive but  his  opinion  would  have  been  largely  nugatory  had 
the  Secretary  under  the  law  giving  him  power  to  sign 
requisitions9  been  able  effectively  to  control  the  expenditure 
of  census  money.  The  Attorney  General  therefore  accom- 
panied his  refusal  to  accept  jurisdiction  over  the  question 
of  disbursements,  by  an  opinion  that  any  duties  devolved 
upon  the  Secretary  in  that  connection  was  of  a  purely  minis- 
terial nature  not  involving  power  to  pass  upon  the  wisdom 
of  the  expenditure.10  The  opinion  was  so  expressed  as  to 
leave  it  entirely  with  the  Comptroller  to  decide  whether  or 

"30  U.  S.  St.,  1014,  ch.  419. 

9  Rev.  St.,  sec.  444. 

10  22  Op.  A.  G.,  413-421. 


THE  COMPTROLLER'S  JURISDICTION  29 

not  the  Secretary's  signature  should  be  required.  It  is 
obvious  that  an  opinion  so  rendered,  whatever  its  legal 
status,  could  scarcely  fail  to  be  of  material  assistance  to  the 
Comptroller  and  would  naturally  be  received  with  peculiar 
deference.  Attorneys  General  on  the  other  hand  have 
shown  themselves  scrupulously  careful  not  to  transgress  the 
advisory  jurisdiction  allotted  to  the  Comptroller  by  the  act 
of  1894. 

The  extent  of  the  advisory  power  which  the  Comptroller 
may  exercise,  and  the  circumstances  under  which  he  may 
legally  assume  jurisdiction  in  a  case,  have  been  determined 
in  a  large  measure  by  his  own  decisions.  Interpreting 
liberally  the  provision  for  advance  decisions,  executive 
officers  have  sometimes  requested  such  decision  when  no 
payment  was  under  contemplation.  In  all  such  cases  the 
Comptroller  has  held  that  he  possessed  no  jurisdiction  to 
render  decisions  except  such  as  affected  proposed  payments 
actually  under  consideration.11  Moreover  the  Comptroller 
does  not  hold  himself  authorized  to  render  a  decision  at  the 
request  of  an  executive  officer  when  the  appropriation  con- 
cerned is  under  the  control  of  some  other  officer.12  Nor 
does  the  provision  authorizing  the  head  of  an  executive  or 
independent  department  to  apply  for  the  revision  of  an  ac- 
count settled  by  an  Auditor,  authorize  the  head  of  a  bureau 
in  a  department  to  apply  for  such  revision.13 

So  with  reference  to  the  jurisdiction  of  Auditors  the  pro- 
visions of  law  have  been  strictly  carried  out.  The  Auditor 
is  not  permitted  within  one  year  to  review  an  account  he 

uln  Re  Seamen  of  SS.  Paris.  I  Comp.  Dec.,  411.  In  Re  Com.  of 
Indian  Affairs'  bond,  II  Comp.  Dec.,  58.  In  Re  Marine  Corps  enlist- 
ment, I  Comp.  Dec.,  139. 

"I  Comp.  Dec.,  317.  . 

"I  Comp.  Dec.,  199. 


3O          JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

has  passed  upon,14  nor  will  the  Comptroller  entertain  a 
claim  not  previously  passed  upon  by  an  Auditor.15  After 
a  year  from  the  date  of  settlement  has  expired  the  Auditor 
has  exclusive  right  to  reopen  a  case  settled  by  himself  or 
his  predecessors,16  but  in  strict  accord  with  the  existing 
constructions  as  established  by  the  Comptroller.  In  all 
these  cases  the  Comptroller  has  held  his  jurisdiction  to  be 
strictly  limited  by  specific  provisions  of  law  and  has  applied 
consistently  the  well  established  principle  of  Anglo  Saxon 
jurisprudence  that  the  law  is  developed  not  by  a  declaration 
of  general  principles  but  by  decision  of  specific  cases. 

In  practical  operation  the  law  of  1894  has  fully  estab- 
lished the  independent  character  of  the  Comptroller's  ad- 
visory jurisdiction.  The  provision  moreover  which  makes 
his  decisions  binding  upon  all  executive  officers  has  been 
shown  to  possess  an  actual  as  well  as  a  legal  validity.  This 
provision  does  not  of  course  bar  any  individual  claimant 
from  bringing  his  case  in  the  courts  although  the  right  of 
suing  the  government  is  of  comparatively  recent  statutory 
enactment.17 

Until  the  Court  of  Claims  was  established  in  i855,18  the 
only  means  of  pursuing  a  claim  denied  by  the  Treasury 
was  through  petition  to  Congress.  The  Court  of  Claims 
was  at  first  hardly  more  than  a  bureau  for  investigating 
claims;  its  findings,  drawn  up  in  form  of  a  bill,  had  no 

14 1  Comp.  Dec.,  27. 

15  III  Comp.  Dec.,  337. 

18  VIII  Comp.  Dec.,  95,  and  IV  Comp.  Dec.,  303. 

17  When  in   1789  James   Madison  proposed  a  specific  right  of  appeal 
from  the  Comptroller's  decisions  to  the  Supreme  Court  it  was  contended 
in  the  debate  that  the   individual   already  possessed   this  right  on  the 
principles  of  common  law.      It  is  not  to  be  supposed,  however,  that  this 
opinion  was  widespread  among  lawyers  at  that  time. 

18  10  U.  S.  St.,  612. 


THE    COMPTROLLERS    JURISDICTION  3! 

legal  validity  until  approved  by  Congress.19  In  1863,  how- 
ever, when  the  court  was  given  authority  to  render  judg- 
ments against  the  government  and  provision  was  made  by 
which  either  party  could  carry  cases  to  the  United  States 
Supreme  Court,20  the  forum  of  appeal  from  executive  de- 
cision passed  from  the  legislative  to  the  judicial  branch  of 
the  government.  There  can  be  no  doubt  that  at  present 
the  Comptroller  is  bound  by  authoritative  judicial  decision 
and  his  decisions  may  be  reversed  by  courts  of  competent 
jurisdiction. 

The  status  of  the  Comptroller  as  an  adjudicator  of  indi- 
vidual claims  is  for  the  most  part  determined  by  the  statu- 
tory provisions  under  which  claims  may  be  pursued  in  the 
courts.  The  original  intention  of  the  law  of  1855  seems 
not  to  have  been  to  establish  any  new  rights  but  to  facilitate 
procedure  under  the  right  of  petition  which  had  always 
existed. 

The  law  of  1863  by  which  the  decrees  of  the  Court  of 
Claims  were  made  executory  in  its  own  name  was  in  the 
interest  of  uniformity  and  was  warmly  approved  by  the 
officers  of  the  Treasury.  Especially  was  this  true  after 
the  law  of  June  25,  1868,  permitted  heads  of  departments 
to  throw  the  original  responsibility  for  adjudicating  contro- 
verted questions  of  law,  directly  upon  the  Court  of  Claims.21 
When,  however,  the  acts  of  March  3,  1887,  gave  concurrent 
jurisdiction  with  the  Court  of  Claims  to  Circuit  and  Dis- 
trict Courts,22  the  interests  of  uniformity  subserved  by  the 
earlier  acts  were  in  large  measure  defeated.  For  several 

19  For  a  discussion  of  the  right  of  an  individual  to  sue  the  Govern- 
ment see  Goodnow,  "  Comparative  Administrative  Law,"  New  York  and 
London,  1893,    H.  pp.  154  ff. 

20  12  U.  S.  St.,  765. 

*  15  U.  S.  St.,  76.     Rev.  St.,  sec.  1063. 
22  24  U.  S.  St.,  505,  ch.  359,  sec.  2. 


32         JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

succeding  years  the  law  of  1887  encountered  emphatic  pro- 
test in  annual  reports  of  the  Comptroller.23 

Complaint  was  likewise  made  that  the  lack  of  uniformity 
was  greatly  increased  by  the  act  of  March  3,  1891,  which 
created  the  Circuit  Court  of  Appeals,  and  made  it  in  its 
several  branches,  a  tribunal  of  last  resort  for  all  cases  not 
exceeding  one  thousand  dollars.24 

The  grievance  of  the  Treasury  Department,  especially 
under  the  law  of  1887,  was  not  a  restriction  of  its  own 
jurisdiction  but  rather  the  unwelcome  necessity  of  ignoring 
supposedly  authoritative  judicial  precedent.  The  power 
to  sue  in  Circuit  and  District  Courts  produced  oftentimes 
a  great  variety  of  interpretations  of  the  same  law,  some  of 
which  the  Comptroller  found  it  impossible  to  follow.25  It 
is  obvious  that  Comptrollers  have  considered  themselves 
in  general  bound  by  court  decisions.26  The  jurisdiction  of 
the  courts,  however,  is  not  so  much  appellate  as  it  is  parallel 
and  independent;  cases  decided  by  the  Comptroller  are  not 
heard  upon  regular  appeal  proceedings,  nor  are  they  review- 
able  by  writ  of  error  or  other  judicial  process.  In  the 
words  of  First  Comptroller  Lawrence:27 

The  general  rule  is  that  the  courts  cannot  in  any  respect 

*  Cf,  reports  of  First  Comptroller  contained  in  Reps,  of  Secty.  of 
Treas.,  51.  Cong.,  i  sess.,  H.  E.  Doc.  19;  2  sess.,  H.  E.  Doc.  19;  52. 
Cong.,  i  sess.,  H.  E.  Doc.  23 ;  2  sess.,  H.  E.  Doc.  23,  and  particularly 
report  for  i8pi-'92  in  53.  Con.,  2  sess.,  H.  E.  Doc.,  22. 

"26  U.  S.  St.,  826,  ch.  517. 

,  *  Cf.   report   of  First   Comptroller   Bowler   for    i89i-'92,    53.   Cong., 
2  sess.,  H.  E.  Doc.  22. 

28  Complaint  concerning  the  law  of  1891  would  seem  to  have  been  less 
well  founded.  The  provisions  under  which  the  Supreme  Court  may 
instruct  the  Circuit  Court  of  Appeals  or  even  take  over  its  cases  largely 
forestall  the  conflict  of  precedent  otherwise  likely  to  result  from  nine 
tribunals  of  last  resort  (26  U.  S.  St.,  ch.  517,  sec.  7). 

27  First  Comptroller  Decisions,  III.  Introduction,  p.  xxxix. 


THE    COMPTROLLERS    JURISDICTION  33 

control,  interrupt,  or  interfere  with  accounting,  or  other  execu- 
tive, officers  in  the  exercise  of  the  jurisdiction  conferred  upon 
them  by  law. . . .  When  there  are  rival  claimants  demanding  pay- 
ment of  the  same  claim,  and  the  executive  officers  make  pay- 
ment to  the  wrong  claimant,  a  court  having  jurisdiction  of  the 
parties  and  subject-matter  may,  after  such  payment,  as  between 
the  parties  or  others  charged  with  notice,  give  relief  to  the 
rightful  claimant. 

There  will  not  in  this  case,  however,  be  any  recourse  to 
the  executive  officer,  and  even  if  a  suit  is  pending  to  decide 
the  validity  of  the  claims,  the  executive  officer  need  not 
await  its  decision  before  making  payment. 

As  a  matter  of  actual  practice,  however,  the  decisions  of 
the  Comptroller  with  certain  exceptions28  are  subject  to 
judicial  review.  The  decisions  of  the  Supreme  Court,  and 
to  a  less  extent  those  of  the  Court  of  Claims  furnish  prec- 
edents which  it  is  incumbent  upon  the  Comptroller  to  fol- 
low. The  influence  of  the  Circuit,  District  and  state 
courts  is  less  authoritative;  their  judgments  are  entitled  to 
the  highest  consideration  and  though  not  always  controlling, 
possess  a  most  potent  persuasive  force.  Principles  laid 
down  by  the  Comptroller,  before  review  in  one  of  these 
courts,  occupy  a  position  dependent  entirely  upon  their 
merits;  temporarily  they  are  binding;  ultimately  they  may 
or  may  not  be  found  correct.29 

28  Cases  decided  in  favor  of  claimants ;  cases  which  decide  that  an  act 
<ioes  not  make  an  appropriation  to  carry  out  a  given  object ;  cases  barred 
by  six  years  limitation ;  various  minor  cases. 

m  There  are  some  conditions  under  which  failure  of  the  courts  to 
sustain  the  action  of  the  Comptroller  cannot  fairly  be  considered  a 
reversal  of  his  decision.  Such  a  condition  would  arise  when  a  specific 
provision  of  the  law  forces  the  Comptroller  to  reject  a  claim  on  tech- 
nical grounds  which  is  afterwards  sustained  on  its  merits.  Again, 
some  cases  are  denied  by  the  Comptroller  because  of  a  question  re- 

4 


34         JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

Probably  the  widest  assumption  of  jurisdiction  ever  made 
by  a  Comptroller  was  that  of  Comptroller  Bowler  in  the 
Sugar  Bounty  Case.30  Although  the  case  was  referred  to 
the  Court  of  Claims  before  the  Comptroller  had  attempted 
to  exercise  the  authority  claimed,  his  action  constituted 
virtually  an  assumption  of  right  to  pass  upon  the  constitu- 
tionality of  an  act  of  Congress.  The  case  brings  in  review 
nearly  all  the  important  judicial  decisions  bearing  on  the 
Comptroller's  jurisdiction.  For  this  reason  as  well  as  for 
the  important  legal  principle  involved  it  is  of  peculiar  in- 
terest. 

The  McKinley  Tariff  Act  of  iSgoB1  made  provision  for  a 
bounty  to  producers  of  sugar  who  should  fulfil  certain  con- 
ditions. The  Wilson  Act  of  i89432  repealed  the  provision. 
Claim  was  set  up  before  the  Court  of  Appeals  of  the  Dis- 
trict of  Columbia,33  that  the  Wilson  Act  was  not  effective 
to  cut  off  the  rights  of  persons  who,  prior  to  its  passage, 
had  procured  licenses  for  the  current  fiscal  year  and  ex- 
pended money  thereunder.  This  position  was  resisted  by 
the  government  on  several  grounds,  among  others,  that  the 
legislation  of  1890  was  unconstitutional.  All  the  con- 
tentions of  the  government  were  supported  by  the  court  in- 

garding  some  essential  facts ;  additional  evidence  presented  to  the  court 
with  reference  to  such  a  claim  may  lead  to  its  allowance.  It  may  also 
happen  that  the  Comptroller  rejects  a  claim  for  the  specific  purpose 
of  allowing  it  to  take  its  course  in  the  courts,  because,  on  account  of 
suspicion  of  fraud,  or  for  other  reason,  it  appears  that  the  ends  of 
justice  will  in  that  way  be  better  subserved. 

80 II  Comp.  Dec.,  98. 

31  26  J.  S.  St.,  584. 

82  28  U.  S.  St.,  521. 

83  23  Wash.  Law  Rep.,  33 ;  5  D.  C.  App.,   138.      U.  S.  ex  rel.  Miles 
Planting  and  Manufacturing  Company  v.  John   G.   Carlisle  and  Joseph 
S.  Miller. 


THE    COMPTROLLERS    JURISDICTION  35 

eluding  that  of  unconstitutionally.34  In  the  civil  appro- 
priation act  of  March  2,  1895,  Congress  enacted  that  all 
those  producers  of  sugar  who,  previous  to  the  repeal  of 
the  bounty  clause,  had  complied  with  the  provisions  of  the 
law  of  1890  should  receive  the  amount  due  at  the  date  of 
the  repeal,  and  a  specific  appropriation  was  made  for  pay- 
ment.35 Under  this  appropriation  the  claim  of  the  Oxnard 
Beet  Sugar  Company  of  Grand  Island,  Nebraska,  having 
been  allowed  by  the  Commissioner  of  Internal  Revenue  and 
the  Auditor  of  the  Treasury  Department,  came  before  the 
Comptroller  for  final  decision. 

The  Comptroller  called  upon  the  Oxnard  Company  to 
show  why  he  should  not  follow  the  decision  of  the  court 
above  referred  to  and  refuse  payment  of  bounties  on  the 
ground  of  unconstitutionality  of  the  appropriation. 

In  their  reply,  after  attacking  the  Comptroller's  power  on 
minor  grounds,36  the  company  contended  that  his  power  to 
construe  statutes  did  not  vest  in  him  jurisdiction  to  declare 
a  law  a  nullity,  and  that  to  assume  such  a  right  would  be  a 
dangerous  usurpation  of  power.  The  Comptroller's  reply 
rested  on  the  well-known  principle  that  an  unconstitutional 

84  Mr.  Chief  Justice  Avery  expressed  no  opinion  upon  the  question  of 
constitutionality,  since  the  conclusion  that  Congress  had  power  to  repeal 
the  bounty  provision  rendered  it  unnecessary  to  pass  upon  the  constitu- 
tionality of  the  original  bounty  clause. 

35  28  U.  S.  St.,  933.  Provision  was  made  also  that  those  who  had 
complied  with  the  bounty  provision  by  securing  licenses  prior  to  July 
i,  1894,  should  be  paid  the  bounty  for  sugar  produced  during  the  year 
ending  June  30,  1895,  and  an  appropriation  was  made  to  cover  such 
payments. 

86  These  related  chiefly  to  the  power  of  the  Comptroller  under  the 
statute  to  reverse  decisions  of  the  Commissioner  of  Internal  Revenue. 
It  was  contended  that  if  he  possessed  any  power  it  was  of  a  purely 
perfunctory  nature.  The  Comptroller  asserted  his  power  to  review  for 
lack  of  jurisdiction  supporting  his  argument  largely  on  the  decision  in 
Bank  of  Greencastle  v.  U.  S.  in  15  Ct.  Cls.  Rep.,  225. 


36         JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

act  is  not  law  and  cannot  bind  an  executive  officer.  His 
contention  was  supported  by  Chief  Justice  Marshall's  opin- 
ion in  the  case  of  Marbury  v.  Madison  and  by  a  long  line 
of  succeeding  cases.37  Arguments  were  based  wholly  upon 
his  position  as  an  executive  officer  and  not  on  any  peculiar 
status  arising  out  of  his  judicial  function. 

Considering  the  Oxnard  case  on  its  merits,  he  concluded 
that  an  appropriation  for  the  payment  of  a  bounty  which 
had  accrued  under  an  unconstitutional  act  was  not  an  appro- 
priation of  money  for  a  public  purpose  within  the  powers 
granted  to  Congress  in  the  constitution.  Instead  of  deny- 
ing the  claim,  it  was  referred  to  the  Court  of  Claims,  but 
before  it  was  reached  on  the  calendar  of  that  court  the 
Supreme  Court  in  the  parallel  case  of  Realty  Company  v. 
United  States  had  decided  that  regardless  of  the  constitu- 
tionality of  the  bounty  act  of  1890  the  appropriation  act  of 
1895  was  entirely  within  the  power  of  Congress.88  The 
general  principle  was  laid  down  that  when  Congress  makes 
an  appropriation  founded  on  purely  moral  and  honorary 
obligations  and  upon  principles  of  right  and  justice,  its 
action  can  rarely  if  ever  be  subject  to  review  by  the  judicial 
branch  of  the  government. 

87  This  point  was  argued  in  great  detail.  The  chief  cases  upon  which 
the  Comptroller  supported  his  conclusion  were  Marbury  v.  Madison, 
i  Cranch  180;  Norton  v.  Shelby  County,  118  U.  S.  442;  Huntington  v. 
Worthen,  120  U.  S.  101  ;  The  People  ex  rel  v.  Salomon,  54  111.  46; 
Smyth  et  al.  etc.  v.  Titcomb,  31  Me.  272;  Sessums  v.  Botts,  34  Tex.  335. 

38  The  reasoning  of  the  opinion  was  as  follows :  Although  it  is  true 
in  general  that  in  the  purely  legal  sense  an  unconstitutional  act  of 
Congress  is  the  same  as  if  there  were  no  act,  yet  by  reason  of  occur- 
rences which  took  place  before  the  approprition  was  made,  among  which 
was  the  passage  of  the  act  of  1890,  parties  situated  like  the  defendant 
in  error,  acquired  claims  upon  the  Government  of  an  equitable,  moral 
or  honorary  nature  which  Congress  could  legally  recognize  and  pay, 
although  the  act  of  Congress  which  resulted  in  such  a  situation  might 
have  been  unconstitutional. 


THE  COMPTROLLER'S  JURISDICTION  37 

This  reasoning,  of  course,  applies  a  fortiori  to  the  ex- 
ecutive branch  of  the  government.  While  it  is  conceivable 
that  such  a  peculiar  and  unusual  combination  of  circum- 
stances might  arise  as  to  lead  the  Comptroller  to  go  behind 
the  intention  of  Congress  regarding  a  matter,  the  constitu- 
tionality of  which  had  not  been  decided  by  the  courts,  still, 
in  the  absence  of  authoritative  judicial  decision  to  the  con- 
trary, laws  will  be  interpreted  as  nearly  as  possible  in  ac- 
cordance with  the  intention  of  Congress.  The  action  of 
Comptroller  Bowler  in  this  case  is  likely  to  be  regarded  as 
an  assumption  of  jurisdiction  which  Congress  never  in- 
tended the  Comptroller  to  possess;  it  is  hardly  likely  to  be 
repeated  by  future  Comptrollers. 

The  judicial  powers  which  Congress  has  conferred  on 
the  Comptroller  make  him  practically  independent  of  other 
executive  officers.  Like  other  officers  of  the  government 
he  is  bound  to  respect  the  decisions  of  the  Supreme  Court 
and  is  presumed,  except  in  cases  of  conflict,  to  follow  the 
precedents  of  other  courts.  Within  his  sphere  he  exercises 
a  jurisdiction  of  far-reaching  legal  as  well  as  practical  im- 
portance. Probably  in  no  branch  of  the  government  is 
there  a  more  constant  exercise  of  judicial  powers  than  in 
the  cases  which  come  before  the  Comptroller  for  adjudica- 
tion. From  a  consideration  of  these  powers  it  is  obvious 
that  there  is  being  administered  and  progressively  developed 
in  his  office  a  large  and  important  body  of  administrative 
law. 


CHAPTER   III 

THE  COMPTROLLER  AS  INTERPRETER  OF  APPROPRIATION  ACTS 

By  virtue  of  his  position  at  the  head  of  the  disbursing 
machinery  of  the  government,  it  becomes  one  of  the  Comp- 
troller's chief  duties  to  construe  appropriation  acts.  The 
need  for  administrative  adjudication  in  this  field  is  greatly 
enhanced  by  the  lack  of  a  budgetary  system.  Appropria- 
tions in  this  country  form  no  part  of  a  centralized  fiscal 
plan,  neither  is  there  unity  in  the  appropriation  measures 
themselves  nor  a  definitely  calculated  balance  between  reve- 
nue and  expenditure.  There  is  no  one  committee  in  either 
house  of  Congress  to  which  are  referred  all  measures  for 
the  disbursement  of  the  public  revenues.  The  Appropria- 
tions Committee  of  the  House  deals  merely  with  those 
appropriation  measures  which  do  not  come  within  the  juris- 
diction of  some  other  committees.1  Appropriations  may 
also  be  made  by  specific  acts  as  well  as  by  regular  appro- 
priation bills  and  such  measures  may  be  introduced  by  any 
member  of  Congress.  Finally  House  bills  are  freely 
amended  in  the  Senate.  In  spite  of  the  intention  of  Con- 
gress to  make  specific  and  minute  provisions  for  all  ex- 
penditures, unsystematic  procedure  results  in  ambiguity  and 
conflict,  and  leaves  a  large  field  for  interpretation. 

1  Appropriations  for  "  Rivers  and  Harbors,"  "  Foreign  Affairs,"  "  Mili- 
tary Affairs,"  "  Naval  Affairs,"  "  Indian  Affairs,"  "  Post  Offices  and 
Post  Roads,"  are  in  charge  of  the  respective  committees  upon  these 
subjects.  The  Appropriations  Committee  is  left  with  only  the  executive, 
administrative  judicial,  District  of  Columbia,  pension,  deficiency  and 
permanent  appropriation  bills. 

38 


INTERPRETER  OF  APPROPRIATION   ACTS  39 

It  is  the  Comptroller's  duty  to  determine  to  what  extent 
an  act  authorizes  the  payment  of  money.  In  practice  no 
act  is  regarded  as  an  appropriation  unless  the  intention  of 
Congress  is  manifest,  but  any  language  which  clearly  directs 
payment  by  an  executive  officer  is  recognized  as  making  a 
valid  appropriation.2  It  is  a  recognized  principle  of  con- 
struction in  the  Comptroller's  office  as  well  as  in  the  courts3 
that  wherever  possible,  acts  will  be  so  interpreted  as  to  give 
effect  to  the  object  designed  by  the  Legislature.  Some  of 
the  cases  however  seem  to  indicate  that  specific  language 
may  be  required  before  the  doctrine  will  be  enforced.  A 
case  in  point  arose  under  a  joint  resolution  of  March  3, 
1897,*  providing  for  the  preparation  of  an  index  to  govern- 
ment publications  with  the  following  provision  for  com- 
pensation : 

And  the  compiler  shall  be  entitled  to  receive  as  compensation 
for  his  work,  at  the  rate  of  one  thousand  dollars  per  Congress 
to  be  paid  by  the  Secretary  of  the  Treasury  as  follows:  Five 
hundred  dollars  whenever  he  shall  certify  to  said  officer  that 
the  index  to  the  documents  of  any  entire  Congress  is  com- 
pleted, and  the  balance  when  the  copy  for  the  entire  work  is 
ready  for  delivery  to  the  Public  Printer. 

The  question  whether  this  resolution  made  an  appropria- 
tion for  the  compiler's  pay  was  submitted  to  Comptroller 
Bowler  for  his  opinion.  No  payment  being  contem- 
plated, as  the  money  had  not  yet  been  earned,  the  Comp- 
troller was  unable  to  make  an  authoritative  decision,  but 
referring  to  the  constitutional  prohibition  of  payment  of 
money  from  the  Treasury  except  upon  appropriations  made 

8  VI  Comp.  Dec.,  514;  VIII  Comp.  Dec.,  818. 
8  In  Re  Ross,  140  U.  S.  475. 
*  29  U.  S.  St.,  704. 


4O         JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

by  law,5  he  expressed  grave  doubts  whether  payment  was 
authorized  by  the  language  quoted  and  suggested  that  Con- 
gress be  asked  to  make  a  definite  appropriation.  When 
later  the  question  came  before  Comptroller  Tracewell  for 
decision,  Congress  having  failed  to  make  the  appropriation 
more  definite,  Comptroller  Bowler's  opinion  was  confirmed 
and  payment  denied.  The  language  was  held  merely  to 
designate  a  method  of  payment;  thus  the  whole  object  of 
the  law  was  nullified.6 

The  question  has  sometimes  arisen  whether  the  necessity 
for  an  expenditure  authorizes  the  use  of  an  appropriation 
for  an  object  for  which  it  would  not  otherwise  be  available. 
By  an  act  of  March  3,  190 1,7  Congress  provided  for  an 
addition  to  the  custom  house  and  post-office  building  in  the 
city  of  Newark,  New  Jersey.  The  necessity  of  removing 
a  church  building  which  had  been  purchased  by  the  gov- 
ernment for  temporarily  quartering  employees  and  for  stor- 
age, entailed  additional  expenditures,  and  the  question  arose 
whether  by  making  the  appropriation  for  the  addition  to 
the  custom  house  and  post-office,  Congress  had  already  by 
implication  made  appropriation  for  these  other  purposes. 
The  Comptroller  held8  that  the  removal  of  the  church  build- 
ing was  a  necessary  incident  to  carrying  out  the  purpose 
of  the  appropriation,  and  was  provided  for  in  the  appro- 
priation, as  would  have  been  the  removal  of  a  tree  or 
boulder.  The  furnishing  of  temporary  quarters  on  the 
other  hand,  while  made  necessary  by  this  removal,  was 
held  not  essential  to  the  execution  of  the  original  act. 

Other  cases  illustrate  the  difficulty  of  applying  the  neces- 

5  Art.  I,  sec.  9,  clause  7. 
6 IV  Comp.  Dec.,  325. 
T3i  U.  S.  St.,  1135. 
"VIII  Comp.  Dec.,  i. 


INTERPRETER  OF  APPROPRIATION  ACTS  4! 

sary  incident  principle  to  a  particular  set  of  facts.  The 
Commissioners  of  the  District  of  Columbia,  in  carrying  out 
an  appropriation  for  permanent  highways,  had  occasion  to 
use  certain  enlarged  prints  of  topographical  maps  which 
although  originally  prepared  by  the  coast  and  geodetic  sur- 
vey, had  been  paid  for  by  the  District  of  Columbia.  The 
expense  incurred  by  the  survey  in  making  the  enlarged 
prints  was  held  to  be  a  proper  charge  against  the  appropria- 
tion for  highways.9  Again  it  was  held  that  the  appropria- 
tion for  the  maintenance  of  the  Washington  aqueduct  was 
applicable  to  constructing  a  sidewalk  in  front  of  the  aque- 
duct office.10  Further,  the  appropriation  for  ocean  and 
lake  surveys  is  applicable  to  the  purchase  of  instruments 
required  for  use  in  one  of  the  vessels  of  the  survey,  even 
though  some  of  the  instruments  would  form  a  part  of  the 
regular  equipment  of  the  vessel  when  not  engaged  in  the 
surveys.11  Per  contra  it  was  decided  by  Comptroller 
Bowler  that  an  appropriation  for  the  construction  of  an 
addition  to  the  United  States  court  house  and  post-office 
in  Little  Rock,  Arkansas,  was  not  applicable  to  the  work 
of  cleaning,  redressing  and  pointing  up  the  walls,  or  paint- 
ing the  wood  work  of  the  original  structure,  in  order  to 
make  it  harmonize  with  the  new  materials  of  the  addition, 
such  work  not  being  a  necessary  incident  to  the  construc- 
tion of  the  addition.12 

A  further  important  question  for  construction  is  pre- 
sented by  the  uncertain  distinctions  between  different  kinds 
of  appropriations.  The  recognized  classes  are  "  annual," 
"  permanent  annual,"  and  "  permanent  specific."  The  gen- 

9 1  Comp.  Dec.,  503. 
"VI  Comp.  Dec.,  443- 
u  IV  Comp.  Dec.,  221. 
"IV  Comp.  Dec.,  192. 


42          JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

eral  policy  of  the  Treasury  has  been  to  regard  all  appropria- 
tions as  annual  unless  a  contrary  intention  is  expressed  in 
the  act,  or  the  object  for  which  appropriation  is  made  clearly 
indicates  a  purpose  to  make  the  appropriation  available  un- 
til the  object  is  accomplished. 

Whatever  the  principle  of  classification  adopted,  the  line 
separating  the  different  kinds  of  appropriations  is  not  suffi- 
ciently definite  to  forestall  a  continual  recurrence  of  doubt- 
ful cases.  Roughly  stated  the  practice  has  been  to  include 
in  the  class  of  "  permanent  annual  appropriations "  the 
salaries  of  judges,  expenses  of  collecting  customs,  support 
of  the  Smithsonian  Institution,  repayment  of  taxes  or  other 
dues  collected  by  error,  and  such  permanent  claims  as  in- 
terest on  the  public  debt  and  the  amount  due  the  sinking 
fund.  Appropriations  for  those  public  works  and  services 
for  which  it  is  impracticable  to  fix  a  definite  time  limit,  are 
classed  as  "  permanent  specific,"  and  all  other  appropria- 
tions are  regarded  as  "  annual." 

The  chief  difficulty  for  the  accounting  officers  is  in  de- 
ciding what  appropriations  should  be  classed  as  "  permanent 
specific."  Departmental  construction  upon  the  subject  has 
been  neither  uniform  nor  consistent.  The  nearest  approach 
to  an  exact  discrimination  is  a  decision  by  Comptroller 
Bowler  that  cases  not  falling  within  the  category  of  "  perm- 
anent specific  "  appropriations  by  definite  provision  of  law 
are  not  to  be  so  classed.13 

The  case  which  called  forth  this  construction  arose  in 
connection  with  an  appropriation  of  twenty  thousand  dol- 
lars for  an  agricultural  experiment  station.  The  act  was 
a  part  of  the  regular  annual  appropriation  for  the  Depart- 
ment of  Agriculture  for  the  year  1891, 14  and  after  remain- 

18  III  Comp.  Dec.,  623  and  629. 
14  26  U.  S.  St.,  282  and  288. 


INTERPRETER  OF  APPROPRIATION   ACTS  43 

ing  on  the  books  for  two  years  without  being  used  had  been 
covered  into  the  treasury.  The  law  of  June  20,  i874,16 
under  which  this  disposition  was  made,  exempted  among 
other  things,  from  the  provision  for  covering  balances  of 
two  years  standing  with  the  treasury,  all  permanent  specific 
appropriations.  In  supporting  the  action  of  the  officer  of 
the  treasury,  the  Comptroller  held  that  the  appropriation 
for  an  experiment  station  did  not  come  within  the  terms 
of  the  exemption.  This  decision  of  Comptroller  Bowler, 
based  upon  a  strict  construction  of  the  statute  may  properly 
be  regarded  as  establishing  a  policy  which  had  been  for 
some  time  developing  in  the  Comptroller's  office. 

15  18  U.  S.  St.,  no.  The  law  of  June  20,  1874,  was  amendatory  of 
earlier  legislation  the  defects  of  which  had  proved  a  source  of  incon- 
venience to  the  accounting  officers  and  had  furnished  a  loophole  for 
improper  disbursements  of  Government  revenues.  The  original  act  on 
the  subject  was  passed  on  March  3,  1795  (i  U.  S.  St.,  433-437),  and 
was  amended  in  1820  (3  U.  S.  St.,  568)  and  again  in  1852  (10  U.  S. 
St.,  76  and  99).  To  check  the  practice  of  liberal  interpretation  by 
which  annual  appropriations  were  held  available  after  the  years  for 
which  they  were  made  (Letter  of  John  Sherman,  Sec.  of  Treas.  to 
Sam.  J.  Randall,  Speaker,  Dec.  14,  1877;  found  in  i  Lawrence  Comp. 
Dec.,  580,  Appendix;  also  14  Opin.  A.  G.,  109),  a  new  law  enacted 
July  12,  1870  (16  U.  S.  St.,  230;  sees.  5  and  6;  Rev.  Stat.,  3690  and 
3691),  made  provision  that  all  balances  of  appropriations  contained  in 
annual  appropriation  bills  and  made  specifically  for  the  service  of  any 
fiscal  year  should  only  be  applied  to  the  payment  of  expenses  properly 
incurred  during  that  year,  and  balances  not  needed  for  such  purposes 
should  be  carried  to  the  surplus  fund.  This  regulation  was  not  to 
apply  to  appropriations  known  as  "  permanent  or  indefinite  appropria- 
tions," the  term  "  permanent  specific  "  being  not  yet  introduced.  Sup- 
plementing these  sections  was  a  provision  that  no  one  department  of 
the  Government  should  expend  in  any  fiscal  year  a  sum  in  excess  of  the 
appropriations  made  for  that  year,  or  involve  the  Government  in  any 
contract  for  the  future  payment  of  money  in  excess  of  appropriations 
previously  provided  for  (16  U.  S.  St.,  251,  sec.  7;  Rev.  St.,  3679). 
Even  this  act  did  not  accomplish  the  purpose  intended  and  the  act  of 
1874  was  intended  to  give  Congress  a  still  more  rigid  control  of  the 
disposition  of  the  public  funds. 


44         JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

The  tenor  of  all  the  legislation  touching  the  subject  of 
appropriations  and  their  availability  is  directly  opposed  to 
liberal  construction.  Congress  has  always  guarded  with 
the  greatest  jealousy  its  constitutional  privilege  of  making 
appropriations.  It  is  not  improbable,  however,  that  in  the 
case  just  considered  the  Comptroller  went  even  beyond  the 
will  of  Congress  in  the  line  of  strict  construction. 

The  effect  of  appropriations  for  incidental,  contingent  or 
miscellaneous  purposes,  and  the  distinction  between  cumu- 
lative and  exclusive  appropriations  for  the  same  object  are 
two  matters  which  have  been  most  prolific  of  serious  ques- 
tions of  construction.  The  use  of  a  contingent  fund  appro- 
priated to  any  department  bureau  or  office,  is  admittedly 
within  the  discretion  of  the  head  of  the  department  and 
may  be  disbursed  upon  his  order;16  but  contingent  or  mis- 
cellaneous appropriations  embodied  in  bills  for  specific  ob- 
jects are  interpreted  to  mean  such  unforeseen  incidental  ex- 
penses as  are  necessary,  usual  and  appropriate  to  the  object 
for  which  the  appropriation  is  made,  and  there  is  no  discre- 
tion conferred  upon  the  heads  of  departments  to  use  such 
appropriations  for  other  purposes.17  While  this  rule  is 
universal  it  is  obvious  that  wide  difference  of  opinion  may 
arise  as  to  what  is  necessary,  usual  and  appropriate  in  in- 
dividual cases. 

Regarding  appropriations  for  the  same  object  found  in 
more  than  one  act  of  Congress,  under  a  general  rule  which 
covers  a  large  number  of  such  cases,  the  existence  of  specific 
appropriations  excludes  the  use  for  the  same  purpose  of 
a  general  appropriation,  although  but  for  the  specific  appro- 

18  However,  the  provision  of  3683  Rev.  St.,  requiring  the  signature  of 
the  head  of  the  department  for  such  disbursement  is  strictly  construed, 
and  his  subsequent  approval  of  disbursements  is  not  deemed  sufficient. 
II  Comp.  Dec.,  i. 

1TIV  Comp.  Dec.,  287.     V  Comp.  Dec.,  151.      VI  Comp.  Dec.,  617. 


INTERPRETER  OF  APPROPRIATION   ACTS  45 

priation  the  general  one  would  be  available  for  that  object.18 
When  two  appropriations  both  specific  in  their  nature  apply 
to  the  same  object,  it  has  been  held  that  they  are  to  be 
treated  as  cumulative  and  either  or  both  may  be  used  in  the 
discretion  of  the  head  of  the  department  concerned.19 

In  other  cases  it  is  held  that  one  appropriation  may  be 
used  when  another  is  exhausted.  Such  a  case  arose  in 
connection  with  a  law  of  March  I,  1895,  increasing  the 
salary  of  the  judge  of  the  United  States  Court  in  Indian 
Territory  from  $3,500  to  $5,ooo.20  On  the  day  following 
the  enactment  of  this  law  (March  2,  1895)  two  measures 
were  passed,  one  making  the  regular  appropriation  of 
$3,500  for  the  judge's  salary,21  the  other  being  an  appro- 
priation of  $50,000  for  salaries  of  judges,  and  other  officers 
in  Indian  Territory.22  It  was  held  that  when  the  first 
appropriation  was  exhausted  the  second  could  be  drawn 
upon  to  make  up  the  deficiency.23 

Again  it  was  held  that  where  a  general  appropriation  for 
the  ordinary  expenses  of  quarantine  stations  had  been 
construed  as  applicable  to  the  maintenance  of  vessels,  a 
subsequent  appropriation  of  a  specific  sum  for  the  repair 
of  vessels  in  the  service,  passed  to  make  up  a  deficiency24 

"I  Comp.  Dec.,  57,  126,  236,  417,  492,  563.      Ill  Comp.  Dec.  70. 

19 IV  Comp.  Dec.,  121. 

20  28  U.  S.  St.,  693,  ch.  145. 

"28  U.  S.  St.,  806,  ch.  177. 

22  28  U.  S.  St.,  966,  ch.  195. 

28  I  Comp.  Dec.,  357. 

24  This  was  somewhat  of  a  variation  of  the  ordinary  "  Deficiency  Bill " 
since  it  was  not  coextensive  with  the  original  bill,  but  provided  only  for 
a  special  object  covered  by  the  original  bill. 

In  the  contemplation  of  the  Comptroller's  office  a  "  Deficiency  Ap- 
propriation"  proper  is  one  made  to  pay  a  liability  legally  created,  for 
the  payment  of  which  an  appropriation  previously  made  is  insufficient ; 
it  supplements  the  original  appropriation,  partakes  of  its  nature,  and  is 
subject  to  the  same  limitations  which  attached  by  law  to  the  use  of  the 
original  appropriation.  IV  Comp.  Dec..  61. 


46  JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

in  the  general  measure,  would  not  be  construed  to  exclude 
the  use  of  the  general  appropriation  for  that  purpose;  the 
two  would  in  that  regard  be  considered  as  cumulative.25 

Another  decision  has  held  that  specific  provisions  of 
appropriation  acts  which  in  their  general  extent  are  for 
different  objects,  may  be  cumulative  in  so  far  as  these 
provisions  are  applicable  to  a  common  object;  each  appro- 
priation in  that  case  would  be  available  for  certain  objects 
not  provided  for  in  the  other.26 

All  these  cases  in  the  nature  of  exceptions  to  a  general 
rigid  rule  of  construction,  in  no  sense  minimize  but  rather 
emphasize  the  strictness  of  the  general  principle.  A  cer- 
tain deviation  from  hard  and  fast  rules  is  indispensable  to 
bring  even  a  minimum  of  elasticity  into  a  rigid  system.  The 
end  in  view  is  always  to  make  effective  the  control  exer- 
cised by  Congress  over  the  expenditure  of  public  revenues. 
The  most  liberal  construction  adopted  will  be  in  general  one 
consistent  with  this  end. 

Aside  from  contingency  funds  in  the  departments  and 
emergency  appropriations  expended  at  the  President's  dis- 
cretion, there  is,  in  case  of  appropriations  for  particular 
objects,  a  large  amount  of  discretion  exercised  by  executive 
officers  and  upheld  by  the  Comptroller.  Such  a  discretion 
is  in  the  very  nature  of  a  superior  executive  office  and 
scarcely  any  appropriation  could  be  expended  without  its 
exercise.  The  practice  is  to  allow  such  discretion  the  very 
widest  range  consistent  with  objects  for  which  the  appro- 
priation is  made.  For  example,  it  was  held  that  an  appro- 
priation for  the  expenses  of  the  Bureau  of  Animal  Industry 
was  available  for  the  purchase,  exportation  and  sale  in 
foreign  countries  of  American  butter,  if  the  Secretary  of 

25  VIII  Comp.  Dec.,  142. 
28 II  Comp.  Dec.,  59. 


INTERPRETER  OF  APPROPRIATION  ACTS  47 

Agriculture  deemed  such  a  course  expedient  in  carrying  on 
the  work  of  the  bureau.27  Discretion  cannot  be  exercised, 
however,  to  the  extent  of  using  an  appropriation  for  objects 
essentially  different  from  those  for  which  it  was  made.  To 
illustrate,  the  Comptroller  on  one  occasion  declined  to 
authorize  the  Secretary  of  the  Treasury  to  use  an  appro- 
priation for  the  care  of  immigrants,  to  pay  for  printing, 
music,  decorations  and  refreshments  in  connection  with 
the  opening  of  a  building  at  the  Ellis  Island  immigrant 
station.28  In  general,  discretionary  appropriations,  although 
exempt  from  some  of  the  restrictions  by  which  other  appro- 
priations are  limited,  are  nevertheless  equally  subject  to 
the  broad  principle  which  distinguishes  our  system  from 
those  in  which  the  details  of  appropriation  measures  are 
less  minute. 

Decisions  of  the  Comptroller  are  sometimes  overruled  by 
the  courts  as  was  done  in  the  Sugar  Bounty  case,29  but  in  a 
large  proportion  of  the  cases  which  have  come  before  the 
Comptroller,  his  decisions  have  stood.  On  some  occasions 
the  Comptroller's  decisions  have  been  necessary  for  the 
amplification  of  court  decisions  upon  the  same  or  kindred 
subjects.  In  illustration  may  be  cited  one  of  the  cases 
which  arose  over  duties  on  goods  imported  from  Porto 
Rico.  On  March  24,  IQOO,30  Congress  enacted  that  reve- 
nues colleced  upon  imports  from  Porto  Rico  after  the  evac- 
uation of  Spain  should  be  appropriated  for  education,  relief 
and  other  public  works  in  the  island.  On  May  27,  1901, 
the  Supreme  Court,  in  DeLima  v.  Bidwell31  held  that 

27  III  Comp.  Dec.,  445. 

28  VII  Comp.  Dec.,  31. 

29  Cf.  supra,  pp.  34  ff. 
80  31  U.  S.  St.,  51. 

*  De  Lima  v.  Bidwell,  182  U.  S.,  i. 


48          JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

goods  coming  from  Porto  Rico  were  not  under  the  then 
existing  tariff  laws  subject  to  duty.  This  placed  the  gov- 
ernment under  the  obligation  of  returning  the  duties  illeg- 
ally collected  and  the  question  arose  whether  the  appro- 
priation so  far  as  unexpended  was  nullified  by  the  decision 
of  the  court.  The  Comptroller  decided  that  the  appropria- 
tion was  made  without  condition  and  would  therefore  con- 
tinue available  notwithtanding  the  fact  that  the  government 
must  refund  to  importers  the  whole  of  the  duties  collected 
and  would  therefore,  contrary  to  the  intention  of  Congress, 
be  in  no  way  reimbursed  for  the  expenditures.32 

Practically  every  undertaking  which  requires  an  appro- 
priation for  its  execution  is  in  some  form  or  other  passed 
upon  by  the  Comptroller.  At  the  beginning  of  the  Spanish 
war  when  an  expedition  was  sent  to  Cuba,  question  arose 
whether  the  appropriation  would  be  available  for  operations 
in  Porto  Rico;  the  Comptroller  decided  that  the  exigencies 
of  the  situation  demanded  a  liberal  interpretation  and  the 
appropriation  was  therefore  made  generally  available  for 
the  West  Indian  campaign.33  The  French  spoliation 
claims,84  the  Chinese  exclusion  act,85  the  Columbian  exposi- 
tion,38 and  other  measures  of  large  political  significance 
have  demanded  the  exercise  of  the  Comptroller's  judicial 
functions.  Some  of  these  cases  have  involved  merely  the 
execution  of  minor  details  while  in  others  the  disposal  of 
large  sums  of  money  and  the  fate  of  the  measure  depend- 
ing upon  such  expenditure  has  been  determined  by  the 
Comptroller's  decision. 

88  VIII  Comp.  Dec.,  408. 
*  V  Comp.  Dec.,  383. 

84  VII  Comp.  Dec.,  422.     VIII  Comp.  Dec.,  626. 

85 1  Comp.  Dec.,  202.  V  Comp.  Dec.,  47,  382.  VII  Comp.  Dec.,  372, 
437,  712- 

"I  Comp.  Dec.,  7. 


CHAPTER   IV 

DECISIONS    OF    THE    COMPTROLLER    CONCERNING    THE    PUBLIC 

REVENUES 

The  field  of  executive  jurisdiction  on  questions  of  taxation 
is  narrowly  limited  to  the  application  of  general  principles 
laid  down  by  the  courts.  This  limitation  arises  naturally 
from  the  practice  of  bringing  to  court  all  more  important 
questions,  carrying  them  usually  to  the  court  of  last  resort. 
While  the  broad  principles  in  accordance  with  which  the 
Comptroller  is  compelled  to  act  are  thus  authoritatively  out- 
lined for  him,  there  remain  a  great  variety  of  questions  in- 
volving extensive  interests  to  which  these  principles  must 
be  applied. 

Revenue  cases  are  usually  numerous,  both  in  the  courts 
and  in  the  office  of  the  Comptroller,  whenever  new  forms 
of  taxation  are  adopted,  especially  when  extensive  changes 
occur  in  the  machinery  of  collection.  When  a  form  of  taxa- 
tion has  been  for  a  long  time  a  part  of  the  revenue  system, 
its  application  becomes  by  judicial  interpretation,  and  by 
long  usage,  so  well  understood  that  even  radical  changes 
in  the  policy  back  of  the  system  give  rise  to  few  new  cases, 
so  long  as  the  administrative  machinery  remains  essentially 
unchanged.  For  example  none  of  the  tariff  revisions  of 
recent  years  have  to  any  large  extent  resulted  in  the  pre- 
sentation of  new  and  important  questions  to  the  Comp- 
troller's office  for  adjudication.1 

*The  Sugar  Bounty  case  although  resulting  from  legislation  enacted 
in  connection  with  tariff  revision  measures,  cannot  itself  be  considered 
as  coming  under  tariff  legislation. 

5  49 


5<D         JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

The  Comptroller  is  called  upon  to  take  cognizance  of 
public  revenue  questions  principally  in  the  form  of  claims 
for  refunding  taxes  alleged  to  have  been  illegally  collected. 
Many  cases  of  this  nature  arose  out  of  the  political  changes 
resulting  from  the  Spanish  American  War.  Before  the 
establishment  of  civil  government  in  Porto  Rico,  the  Presi- 
dent, by  an  order  of  January  20,  1899,  promulgated  a 
schedule  of  customs  duties  which  were  collected  by  the 
military  authorities  of  the  island.  In  Dooley  v.  United 
States,  the  third  of  the  suits  commonly  designated  the 
"  Insular  "  Cases,2  the  Supreme  Court  held  that  such  col- 
lections were  illegal.  The  question  was  thereupon  brought 
before  the  Treasury  Department  whether  similar  claims 
would  be  refunded  without  suit.3  The  Comptroller  held 
that  authority  to  refund  was  only  given  by  specific  provision 
of  statute ;  since  the  statutes  in  force  only  provided  for  re- 
funding duties  wrongly  paid  to  a  "  collector  of  customs," 
and  the  military  authorities  of  Porto  Rico  were  not,  prop- 
erly speaking,  collectors  of  customs,  the  collector  had  no 
power  to  refund.4 

2  Dooley  v.  U.  S.,  183  U.  S.,  151. 

3  VII  Comp.  Dec.,  848. 

4  Commenting  upon  the  language  of  Justice  Brown  who,  in  DeLima  v. 
Bidwell,  said,  "  a  collector  though  appointed  by  a  military  commander, 
may  be  presumed  to  have  the  ordinary  power  of  a  collector,"  the  Comp- 
troller observed,  "  I  do  not  take  it  that  the  court  intended  by  such  lan- 
guage to  hold  that  an  army  officer  appointed  by  the  military  power  of 
the  Government  to  operate  in  a  certain  territory — such  was  the  officer 
who  collected  the  duties  in  question,  stationed  at  San  Juan,  Porto  Rico, 
not  a  port  of  entry  of  the  United  States,  who  did  not  account  to  the 
United   States    for   the   duties   collected,   who   made   no    report   to   the 
Secretary    of   the   Treasury    thereof,    which    duties   were    not    collected 
under    any    law    of    Congress,    but   under    a    military    order    having    no 
relation  whatever  to  our  tariff  system, — was  any  such  collector  as  was 
in    the    contemplation    of    Congress    when    it    made   provisions    for   the 
refund  of  duties  collected  and  liquidated  by  the  collectors  of  customs 


DECISIONS   CONCERNING  THE  PUBLIC  REVENUES  5! 

This  ruling  forced  individuals  making  claims  under  the 
decision  of  the  Supreme  Court  each  to  bring  suit  for  the 
amount  illegally  collected.  The  process  of  collection,  was, 
however,  somewhat  simplified  by  the  act  of  April  29,  1902, 
authorizing  the  Secretary  of  the  Treasury  to  repay  duties 
collected  by  the  military  authorities  of  Porto  Rico  upon  the 
certificate  of  judgment  by  the  Court  of  Claims.5 

In  DeLima  v.  Bidwell,6  the  first  of  the  Insular  Cases, 
the  Supreme  Court  decided  that  duties  levied  on  articles 
brought  from  Porto  Rico  to  the  United  States  between  the 
ratifying  of  the  Treaty  of  Paris7  (April  n,  1899)  and  the 
date  upon  which  the  Foraker  act8  went  into  effect  (May 
i,  1900),  were  illegally  collected.  Again  the  Comptroller 
was  called  upon  to  rule  upon  the  question  of  making  refunds. 
A.  S.  Lascelles  &  Co.,  who  paid  duties  under  protest,  the 
circumstances  being  identical  with  those  in  the  DeLima 
case,  presented  claim  against  the  treasury  for  the  amount 
collected.9 

The  power  to  refund  moneys  illegally  collected  is  found 
in  the  act  of  March  3,  i875,10  and  in  the  customs  adminis- 

therein  mentioned.  It  certainly  was  not  in  the  mind  of  Congress  .  .  . 
to  extend  the  provisions  of  said  act  (act  of  June  10,  1890)  to  duties 
collected  by  the  military  arms  of  the  Government.  ...  I  do  not  believe 
that  the  act  can  be  so  extended ;  hence  I  am  of  the  opinion  that  you 
[referring  to  the  Secretary  of  the  Treasury]  are  not  authorized  to  use 
the  appropriation  made  in  said  section  24  to  make  the  refundments  men- 
tioned in  your  reference." 

5  32  U.  S.  St.,  176. 

•DeLima  v.  Bidwell,  182  U.  S.  i. 

T3oU.  S.  St.,  1754- 

8  31  U.  S.  St.,  86,  ch.  191.  Act  regulating  the  commercial  relations 
between  the  United  States  and  Porto  Rico  after  cession  by  the  Treaty 
of  Paris. 

•VIII  Comp.  Dec.,  12. 

'°  1 8  U.  S.  St.,  469. 


52          JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

trative  act  of  June  10,  1890,"  which  latter  act  contains  a 
provision  for  appeal  from  the  Board  of  General  Ap- 
praisers,12 and  for  the  refund  of  excessive  payments  and 
of  monies  deposited  on  appeal.13  In  an  earlier  case  the 
Supreme  Court  had  held  that  in  reviewing  the  work  of  the 
Board  of  General  Appraisers,  as-  provided  in  the  act  of 
1890,  the  court  was  limited  to  questions  of  legal  construc- 
tion, classification  and  the  rate  of  duty,  which  the  board 
had  original  authority  to  determine,  but  it  could  not  go 
beyond  the  board's  functions  to  pass  on  the  question 
whether  or  not  an  article  was  imported  merchandise.14 

The  Comptroller  held  that  this  decision  did  not  pass  upon 
the  quesion  of  refund  but  simply  laid  down  that  a  person 
of  whom  a  duty  is  exacted  as  an  import  duty,  when  in  fact 
the  goods  are  not  imported  or  importable,  cannot  put  this 
question  before  the  courts  for  review  by  any  proceedings 
under  the  customs  administrative  act  of  iSo/x15  This 
rested  the  authority  to  refund  upon  the  act  of  March  3, 

"26  U.  S.  St.,  140,  ch.  407,  sec.  24. 

"Ib.,  sec.  15. 

"  Ib.,  sec.  24.  The  following  is  the  language  employed :  "  When- 
ever it  shall  be  shown  to  the  satisfaction  of  the  Secretary  of  the 
Treasury  that,  in  any  case  of  unascertained  or  estimated  duties,  or  pay- 
ments made  upon  appeal,  more  money  has  been  paid  to  or  deposited  with 
a  collector  of  customs  than,  as  has  been  ascertained  by  final  liquidation 
thereof,  the  law  required  to  be  paid  or  deposited,  the  Secretary  of  the 
Treasury  shall  direct  the  Treasurer  to  refund  or  pay  the  same  out  of 
any  money  in  the  Treasury  not  otherwise  appropriated.  The  necessary 
moneys  therefor  are  hereby  appropriated,  and  this  appropriation  shall 
be  deemed  a  permanent  indefinite  appropriation;  and  the  Secretary  of 
the  Treasury  is  hereby  authorized  to  correct  manifest  clerical  errors  in 
any  entry  or  liquidation,  for  or  against  the  United  States,  at  any  time 
within  one  year  of  the  date  of  such  entry,  but  not  afterwards." 

14  In  Re  Fassett,  142  U.  S.,  479- 

»VIII  Comp.  Dec.,  16. 


DECISIONS  CONCERNING  THE  PUBLIC  REVENUES  53 

i875,16  the  language  of  which  is  somewhat  broader  than 
that  employed  in  the  act  of  1890.  It  provides  negatively 
that  no  moneys  collected  as  duties  on  imports  in  accordance 
with  any  decision  of  the  Secretary  of  the  Treasury  shall 
be  refunded  except  under  judgment  of  a  Circuit  or  Dis- 
trict court,  under  a  special  appropriation,  or  where  col- 
lected under  an  erroneous  view  of  facts.  Upon  this  act 
the  Comptroller  ruled  that  the  collection  of  money  as  duty 
on  imports,  whether  or  not  the  articles  were  in  fact  im- 
ported goods,  was  sufficient  to  comply  with  the  letter  of 
the  law,  and  that  under  such  a  state  of  facts  the  government, 
having  first  impressed  upon  the  articles  the  character  of 
imported  goods  for  its  own  profit  should  be  estopped  from 
contending  the  contrary. 

The  conclusion  that  the  law  of  1875  gave  power  to  re- 
fund under  such  circumstances  as  existed  in  the  Lascelles 
case,  made  the  decision  hinge  merely  on  the  status  of  that 
law.  In  deciding  the  case  concerning  duties  collected  by 
the  military  authorities  in  Porto  Rico,17  the  Comptroller 
had  already  expressed  the  opinion  that  the  law  of  1890 
was  intended  as  a  complete  substitute  for  all  prior  legisla- 
tion on  the  subject,  and  hence  by  implication,  repealed  all 
such  prior  laws.  His  opinion  in  the  earlier  case,  however, 
was  not  fundamental  to  the  decision,  and  this  made  it  pos- 
sible while  adhering  to  the  decision  to  reconsider  his  opin- 
ion.18 Accordingly  he  held  in  contradiction  to  his  opinion 

"i8U.  S.  St.,  469. 

"  VII  Comp.  Dec.,  848. 

"  The  language  with  which  the  first  decision  is  concluded  seems  to 
indicate  that  at  the  time  it  was  made  the  Comptroller  had  in  mind  no 
other  provisions  than  those  of  the  law  of  1890  to  enable  him  to  refund 
duties  under  circumstances  such  as  existed  in  the  Lascelles  case.  "  I 
express  no  opinion,"  he  said,  "as  to  whether  section  24  of  the  act  of 
June,  1890,  with  its  cognate  sections  14  and  15,  are  broad  enough  to 


54         JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

expressed  two  weeks  earlier,  that  the  law  of  March  3,  1875, 
had  not  been  repealed  by  the  act  of  June  10,  1890,  and  that 
therefore  duties  collected  under  the  circumstances  described 
could  legally  be  refunded  by  the  Secretary  of  the  Treas- 
ury.19 

The  fourth  and  last  of  the  Insular  Cases  commonly 
known  as  the  "  Fourteen  Diamond  Rings  Case,"20  came 
before  the  Comptroller  on  a  claim  for  drawback21  upon 

justify  a  refundment  as  to  such  merchandise  when  such  duties  are 
collected  by  a  United  States  Collector  under  protest,  and  go  into  the 
Treasury  of  the  United  States  and  are  properly  liquidated  as  provided 
in  said  section"  (VII  Comp.  Dec.,  852).  In  the  Comptroller's  earlier 
decision  where  the  opinion  had  been  expressed  that  the  law  of  1875  was 
repealed  by  the  act  of  1890,  the  denial  of  a  power  to  refund  was  based 
largely  on  the  technical  definition  of  the  phrase,  "  collector  of  customs." 
The  desirability  from  an  administrative  viewpoint  of  providing  an  eco- 
nomical and  just  system  of  making  refunds  in  a  large  class  of  cases 
might  well  have  led  to  a  reconsideration  of  an  opinion,  even  though  it 
had  been  vital  to  the  case  in  which  it  appeared.  The  two  cases  are 
indicative  of  the  difficulties  which  legal  technicalities  often  place  in  the 
way  of  necessary  administrative  ends. 

19  VIII   Comp.   Dec.,   20.      The  line  of  argument  by  which  the  later 
opinion  was  supported  well  illustrates  the  characteristic  legal  considera- 
tions which  the  Comptroller  has  occasion  to  employ.      It  includes  the 
following  points : 

1.  The  act  of   1890  in  specific  terms  repealed  certain  other  sections 
of  tariff  laws  but  omitted  to  repeal  the  act  of  1875  ;  this  act  therefore 
must  be  repealed  if  at  all,  by  the  general  clause  repealing  all  acts  in- 
consistent with  the  act  of  1890. 

2.  The  act  of  1875  related  to  a  class  of  refunds  not  embraced  in  the 
law  of  1890  and  was  therefore  not  inconsistent  with  it. 

3.  The  act  of  1890  required  a  statement  to  be  made  to  Congress  of 
all  moneys  refunded  under  that  or  any  other  act;  if  the  law  of   1875 
were   not   in   force   there   would  be   no    other   act  under   which   money 
could  be  refunded  and  the  language  would  have  no  meaning. 

4.  The  usage  of  the  Treasury  Department  after  the  passage  of  the 
law  of  1890  had  assumed  that  the  law  of  1875  was  in  force,  and  refunds 
had  continuously  been  made  under  it. 

20  Fourteen  Diamond  Rings,  Emil  J.  Pepke  v.  U.  S.,  183  U.  S.,  176. 
21 VIII  Comp.  Dec.,  427. 


DECISIONS   CONCERNING  THE  PUBLIC  REVENUES  55 

goods,  which  having  paid  the  internal  revenue  tax  as  pro- 
vided by  the  act  of  June  13,  i8o,8,22  had  been  subsequently 
shipped  to  the  Philippines.  The  law  provided  for  draw- 
back on  such  goods  when  shipped  to  a  foreign  country,  but 
although  the  Fourteen  Diamond  Rings  case  had  applied 
the  doctrine  of  DeLima  v.  Bidwell  to  the  Philippines,  it  was 
contended  that  nevertheless  these  islands  were  included  in 
the  term  "  foreign  countries  "  as  contemplated  by  Congress 
in  the  war  revenue  measure  of  June,  iSQS.23  The  Comp- 
troller held,  however,  that  the  decision  of  the  Supreme 
Court  had  thrown  the  Philippines  outside  of  the  drawback 
provisions  of  the  law  of  1898  and  the  claim  was  not  allowed. 

Questions  regarding  drawbacks  have  frequently  been  be- 
fore the  Comptroller's  office  ever  since  the  passage  of  the 
internal  revenue  act  of  i864.24  The  principle  by  which 
they  are  decided  is  summed  up  in  a  case  adjudicated  by 
First  Comptroller  Lawrence  in  1884,  and  known  as  the 
"  Exporter  "  case.25  The  essence  of  this  decision  was  that 
a  drawback  is  not  a  gratuity  but  arises  as  a  right  under  a 
statute,  and  that  it  is  sufficient  to  establish  a  claim  if  a 
claimant  furnishes  legal  proof  that  he  has  manufactured 
the  goods,  paid  the  internal  revenue  tax  and  has  exported 
them. 

The  war  revenue  measure  of  June  13,  i&g&,2*  introducing 
as  it  did  new  forms  of  taxation,  gave  rise  to  several  cases 
to  which  considerable  legal  and  fiscal  significance  attached. 
It  included  among  other  things  provision  for  a  tax  on 

22  30  U.  S.  St.,  448,  sec.  26. 

28  The  second  Insular  case,  Downes  v.  Bidwell  (182  U.  S.,  244),  had 
decided  that  the  Foraker  act,  levying  a  duty  on  articles  passing  between 
Porto  Rico  and  the  United  States,  was  constitutional  notwithstanding 
the  decision  in  DeLima  v.  Bidwell,  182  U.  S.)« 

24 13  U.  S.  St.,  302. 

25  V  Lawrence  Comp.  Dec.,  13. 

26  30  U.  S.  St.,  448. 


;56         JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

brokers  at  once  presenting  the  question  by  what  circum- 
stances a  broker  is  constituted.  In  one  case27  the  evidence 
indicated  that  a  firm  had  from  time  to  time  invested  its 
funds  in  securities  such  as  school  orders,  county  warrants, 
etc.,  whereupon  the  Collector  of  Internal  Revenue  required 
the  firm  to  buy  a  fifty  dollar  tax  stamp  for  which  claim 
for  redemption  was  made  and  allowed  by  the  Commissioner 
of  Internal  Revenue.  The  Auditor  for  the  Treasury  De- 
partment reversed  the  Commissioner's  ruling  and  referred 
the  case  to  Comptroller  Tracewell  who  upheld  the  Commis- 
sioner deciding  that  a  person  who  buys  securities  for  in- 
vestment is  not  a  person  whose  business  it  is  to  negotiate 
purchases  of  such  securities,  and  is,  therefore,  not  a  broker 
according  to  the  meaning  of  that  term  in  the  act.  Further 
definition  of  the  term  "  commercial  broker  "  was  made  by  a 
later  case  in  which  it  was  held  that  the  term  included  only 
such  persons  as  negogiated  the  purchase  and  sale  of  goods 
without  having  the  custody  of  them.28  If  that  condition 
is  fulfilled,  however,  negotiation  carried  on  with  a  single 
firm,29  or  the  negotiation  of  a  single  transaction30  consti- 
tutes a  person  a  broker  and  makes  him  subject  to  the  tax. 
The  tax  on  mortgages  has  likewise  occasionally  had  to 
be  construed  by  the  Comptroller.  He  has  held  that  a 
mortgage  given  to  secure  the  payment  of  bonds  to  a  speci- 
fied amount  is  taxable  according  to  the  sum  for  which  upon 
its  face  it  purports  to  be  given  as  security,  notwithstanding 
the  fact  that  bonds  to  a  much  smaller  amount  have  been 
issued.81  Other  cases  have  involved  construction  of  the 
statutes,  providing  for  the  disclosure  of  liability  to  taxa- 

27  VI  Comp.  Dec.,  216. 
"VI  Comp.  Dec.,  545. 
"VII  Comp.  Dec.,  337. 
•°VII  Comp.  Dec.,  495. 
81 VII  Comp.  Dec.,  46. 


DECISIONS  CONCERNING  THE  PUBLIC  REVENUES  5/ 

tion,  and  penalty  for  the  failure  to  make  such  disclosure;8* 
likewise  the  conditions  for  making  refunds,  and  the  pro- 
visions for  the  redemption  of  documentary  stamps  are 
subjects  which  the  Comptroller  has  been  called  upon  to 
consider.83 

Of  somewhat  greater  legal  interest  are  cases  which  define 
the  relation  of  the  Comptroller  to  the  Commissioner  of 
Internal  Revenue.84  The  principle  followed  is  that  the 
findings  of  the  Commissioner  are  conclusive  upon  the  Comp- 
troller as  to  the  fact  upon  which  an  allowance  is  made,  but 
not  as  to  the  questions  of  law  arising  therein.  The  prin- 
ciple differs  but  little  from  that  governing  the  relations  of 
the  Comptroller  to  other  executive  officers. 

A  question  of  some  fiscal  significance  and  one  which,  had 
it  been  decided  otherwise  might  have  led  to  litigation,  arose 
in  connection  with  an  increase  in  the  tax  on  fermented 
liquors,  provided  for  by  the  act  of  June  13,  i898.35  The 
tax  was  raised  from  one  dollar  to  two  dollars  per  barrel 
and  made  to  apply  to  all  liquors  brewed,  or  manufactured 
and  sold,  or  stored  in  warehouse,  or  removed  for  consump- 
tion or  sale,  within  the  United  States.  The  language  of 
the  act  differed  from  that  of  its  predecessors  by  the  phrase, 
"  or  stored  in  warehouse  "  and  the  question  arose  whether 
liquor  in  the  possession  of  a  wholesale  dealer  at  the  time 
the  law  became  operative  would  be  charged  the  additional 
tax.  The  Comptroller  decided  that  the  phrase  referred  to 
storing  in  warehouse  by  the  person  liable  for  the  tax, 
namely  the  brewer,  and  that  the  tax  was  not  intended  to 
apply  to  dealers  other  than  brewers.86 

12  VI  Comp.  Dec.,  686  and  760;  VIII,  663  and  697;  Rev.  St,  sec.  3173. 
"VI  Comp.  Dec.,  434  and  558;  VII,  158;  VIII,  280  and  363. 
**  VI  Comp.  Dec.,  259. 
•30  U.  S.  St.,  448. 
*VI  Comp.  Dec.,  196. 


58          JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

Revenue  cases  do  not  constitute  one  of  the  most  impor- 
tant branches  of  the  Comptroller's  activities.  One  effect 
of  relieving  him  of  administrative  duties  in  1894  was  to 
take  matters  concerning  the  collection  of  revenue  largely 
out  of  his  hands.  It  is  only  when  an  alleged  illegal  collec- 
tion brings  a  revenue  law  before  him  for  judicial  construc- 
tion that  his  functions  in  this  field  become  important,  and 
even  then  his  work  is  usually  preceded  by  authoritative 
decisions  of  the  courts.  This  circumstance  has  tended  to 
reduce  the  sphere  of  the  Comptroller's  jurisdiction  to  a 
minimum,  and  to  rest  the  significance  of  his  work  in  this 
field  not  so  much  upon  the  importance  of  legal  principles 
developed  as  upon  the  material  interests  involved  in  con- 
troversy. 


CHAPTER   V 

THE  COMPTROLLER'S  JURISDICTION  OVER  DISBURSEMENTS  FOR 
SERVICES  TO  THE  GOVERNMENT 

Few  of  the  disbursements  in  this  field  are  directly  regu- 
lated by  decisions  of  the  courts.  The  sums  involved, 
although  large  in  the  aggregate,  are  individually  far  too 
small  to  warrant  the  expense  of  a  suit  at  law.  It  results 
that  the  work  coming  within  this  category,  both  as  regards 
the  number  of  questions  decided  and  the  aggregate  amount 
involved,  is  greater  than  in  any  other  line  of  cases,  and  for 
the  great  majority  of  these  cases  the  Comptroller  is  final 
judge. 

The  classification  of  cases  into  civil  and  military  indicates 
the  most  obvious  line  of  division.  Military  cases  have  to 
do  either  with  the  regular  pay  of  members  of  the  army  or 
navy  or  with  allowances  such  as  mileage  and  travel  ex- 
pense, commutation  of  rations  and  quarters,  medical  attend- 
.ance,  burial  expenses,  bounties  and  pensions.  The  consid- 
erations which  determine  the  amount  and  conditions  of 
payment  for  these  purposes  are  primarily,  terms  of  enlist- 
ment or  appointment,  nature  and  duration  of  service,  pro- 
motion and  advancements,  desertion,  leaves  of  absence,  dis- 
charge or  retirement,  and  finally  statutory  provisions.  Civil 
cases  involve  the  distinction  between  officers  and  employees, 
the  rights  of  employees  resting  upon  the  contract  of  em- 
ployment,1 while  the  rights  and  obligations  of  officers  de- 
pend upon  interpretation  of  the  law  under  sanction  of 

*IV  Comp.  Dec.,  696. 

59 


60         JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

which  the  office  exists.  Much  depends  also,  as  will  appear, 
upon  the  nature  of  the  office  and  the  method  of  com- 
pensation. 

Of  the  large  number  of  cases  arising  in  the  army  and 
navy,  the  majority  are  decided  by  the  rigid  application  of 
specific  and  detailed  statutory  provisions.  This  is  well 
illustrated  in  a  case  which  came  under  the  statutes  pro- 
viding for  extra  pay  for  service  in  the  Spanish  American 
war.  An  act  passed  January  12,  1899,2  provided  that  all 
persons  who  had  served  in  the  army  outside  of  the  United 
States,  should  upon  being  mustered  out  receive  two  months 
extra  pay  and  that  those  who  had  served  within  the  United 
States  should  receive  extra  pay  for  one  month.  On  March 
3,  i899,3  this  act  was  amended  to  provide  for  the  payment 
of  extra  pay  to  the  legal  heirs  and  representatives  of  those 
who  died  in  the  service.  On  the  same  day  (March  3, 
1899),*  Congress  extended  the  provisions  of  the  act  of 
January  12,  1899,  to  members  of  the  navy  without,  how- 
ever, especially  providing  for  payment  to  legal  heirs  or 
representatives.  The  Court  of  Claims  in  Semple  v.  United 
States5  held,  on  July  28,  1899,  that  grants  of  extra  pay  are 
mere  gratuities,  and  create  only  an  inchoate  right  which, 
if  not  reduced  to  possession  by  the  beneficiary,  dies  with 
him  and  does  not  descend  and  become  a  part  of  his  estate. 
Applying  this  decision,  Assistant  Comptroller  Mitchell  held 
that  the  right  to  extra  pay  of  an  heir  or  representative  of 
a  person  who  had  died  in  the  army  service  rested  merely 
upon  the  specific  provision  of  the  act  of  March  3,  1899,  and 
that  therefore  a  father  is  not  entitled  under  the  act  applying 

'30  u.  S.,  784. 
•30  U.  S.  St.,  1074. 

4  30  U.  S.  St.,  1228. 

5  Semple  v.  U.  S.,  24  Ct.  Cls.,  422. 


JURISDICTION   OVER  DISBURSEMENTS  6 1 

to  members  of  the  navy,  to  extra  pay  which  would  have 
accrued  upon  discharge  to  his  deceased  son.8 

The  facts  in  this  case  are  not  without  legal  interest. 
A  father  entered  claim  for  extra  pay  as  the  legal  heir  of  his 
son,  who  he  claimed  had  died  in  the  service.  On  the  date 
on  which  his  company  was  mustered  out,  the  son  had  been 
reported  as  "  absent,  sick  in  hospital."  The  resident  sur- 
geon of  the  hospital  where  the  son  had  later  died,  reported 
that  the  son's  condition  was  such  that  he  was  unable  to 
receive  notice  of  the  mustering  out.  Upon  this  state  of 
fact  the  Assistant  Comptroller  held  that  the  government 
was  excused  from  giving  him  such  notice,  and  that  he  was 
to  be  regarded  as  having  been  discharged  with  the  muster 
out  of  the  company.  As  he  was  therefore  not  in  the  ser- 
vice at  the  date  of  his  death  his  heirs  would  not  be  entitled 
under  the  statute  to  the  extra  pay  to  which  he  had  an 
inchoate  right  during  his  life  time.7 

Upon  grounds  of  equity  it  would  seem  that  the  illness 
of  the  soldier  which  excused  the  government  from  notifying 
him  of  his  discharge,  might  likewise  have  operated  to  per- 
petuate the  inchoate  right  and  pass  it  on  to  the  heirs.  The 
same  condition  that  prevented  the  government  from  serving 
notice  of  discharge  likewise  prevented  the  soldier,  through 
no  fault  of  his  own,  from  reducing  this  inchoate  right  to 
possession  as  it  may  be  supposed  he  had  the  legal  right  to 
do  between  the  date  of  the  muster  out  of  the  company  and 
his  death.  Whether  the  courts  would  look  for  a  more 
equitable  interpretation  of  the  law  and  the  facts  is  not  to 
be  ascertained.  The  case  is  a  striking  example  of  con- 
struction in  strict  accordance  with  express  statutory  pro- 
visions. 

•VI  Comp.  Dec.,  86. 
TVII  Comp.  Dec.,  453. 


62          JUDICIAL   WORK  OF   COMPTROLLER  OF  TREASURY 

The  same  principle  applies  in  general  to  decisions  upon 
the  questions  of  mileage,  but  there  have  been  some  rather 
notable  exceptions.  Like  the  regulations  regarding  pay, 
this  subject  is  covered  by  most  detailed  statutory  provisions. 
Mileage  is  regarded  under  the  law  as  an  allowance  in  lieu 
of  traveling  expenses  actually  incurred,  and  in  spite  of 
minute  regulations,  it  is  not  always  clear  whether  mileage 
or  the  actual  expenses  are  to  be  allowed.  The  question  has 
arisen  when  officers  of  the  army  and  navy  have  been  de- 
tailed for  duty  with  the  civil  branch  of  the  government. 
The  settled  policy  is  that  they  are  entitled  to  the  same  allow- 
ance when  so  engaged  as  they  would  receive  when  perform- 
ing their  duties  in  the  military  service  whether  such  allow- 
ance amount  to  more  or  less  than  their  actual  expenses.8 

In  general,  for  mileage  to  be  allowed  all  the  specific  con- 
ditions of  the  statutes  must  be  complied  with.  The  travel 
must  be  performed  under  orders,9  issued,  except  in  cases 
of  emergency,  before  the  travel  is  performed.10  It  is 
allowed  in  general  over  the  shortest  usually  traveled  route,11 
but  if  it  can  be  shown  that  the  exigencies  of  the  service 
required  a  longer  route,  or  if  orders  specified  such  a  route, 
mileage  will  be  computed  accordingly.12  Unless,  however, 
this  can  be  shown  it  will  be  computed  by  the  shortest  route 
regardless  of  the  number  of  miles  actually  traveled.13 

In  addition  to  those  requirements  there  are  minute  pro- 

8  III  Comp.  Dec.,  703.  In  a  case  decided  June  30,  1899,  Acting 
Comptroller  Mitchell  held  in  spite  of  this  principle  that  an  officer  of 
the  Army  detailed  to  witness  the  issue  of  annuity  goods  to  the  Indians 
is  entitled  to  actual  traveling  expenses  but  not  to  mileage.  V  Comp. 
Dec.,  982. 

•I  Comp.  Dec.,  381. 

10 IV  Comp.  Dec.,  175. 

11 1  Comp.  Dec.,  115. 

12 1  Comp.  Dec.,  118. 

18  II  Comp.  Dec., 544;  IV,  74. 


JURISDICTION  OVER  DISBURSEMENTS  63 

visions  for  deductions  to  be  made  from  total  mileage  for 
travel  by  Government  conveyance,  the  deductions  being  ad- 
justed according  to  the  provisions  for  subsistence.  Ar- 
rangements are  likewise  made  for  deductions  in  case  of 
travel  over  subsidized  railroads  and  those  roads  with  which 
the  government  has  special  agreements.1* 

In  general,  a  rigid  regulation  strictly  interpreted  will 
tend  to  foster  the  interest  of  the  government.  A  technical 
interpretation,  however,  has  sometimes  resulted  in  a  more 
liberal  allowance  than  the  general  spirit  of  the  statute 
would  have  seemed  to  direct.  This  is  illustrated  by  a  case 
which  arose  with  reference  to  mileage  for  travel  to  and  from 
the  insular  possessions.  The  army  appropriations  act  for 
the  year  1901—1902  provided  for  seven  cents  mileage  for 
officers  and  contract  surgeons15  but  limited  payment  for  sea 
travel  to,  from  or  between  our  island  possessions  to  actual 
expenses. 

While  this  law  was  in  force  Surgeon  General  George  M. 
Sternberg  traveled  to  and  from  the  Philippine  Islands  and 
Japan  in  execution  of  the  following  order : 

The  Secretary  of  War  directs  as  necessary  for  the  public 
service  that  you  proceed  via  Chicago,  111.,  Kansas  City,  Mo., 
and  Los  Angeles  to  San  Francisco,  Cal.,  on  official  business 
pertaining  to  the  inspection  of  the  medical  supply  depot  in  the 
latter  city  and  the  United  States  General  Hospital  at  the 
Presidio  of  San  Francisco;  that  upon  the  completion  of  this 
duty  you  proceed  to  Manila,  P.  L,  for  the  purpose  of  inspecting 
the  supply  depots  and  general  and  post  hospitals  in  Manila  and 
such  other  places  in  the  Philippine  Islands  as  you  may  deem 
it  necessary  to  visit;  that  upon  the  completion  of  this  inspec- 
tion you  proceed  to  Nagasaki,  Japan,  and  inspect  the  military 
hospital  at  that  place ;  thence  to  Yokohama,  Japan,  for  the  pur- 

14  I  Comp.  Dec.,  122;  III,  210;  V,  70;  VI,  622. 

15  31  U.  S.  St.,  901. 


64         JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

pose  of  visiting  the  naval  hospital  recently  established  there; 
and  that,  upon  the  completion  of  the  duty  herein  ordered,  you 
return  via  San  Francisco,  Cal.,  to  your  proper  station  in  this 
city." 

General  Sternberg's  claim  for  mileage  was  denied  by  the 
Auditor  for  the  War  Department  on  the  ground  that  per- 
formance of  temporary  duty  in  Nagasaki  and  Yokohama  did 
not  make  the  journey  any  less  travel  to  and  from  the  Philip- 
pines. Assistant  Comptroller  Mitchell  reversed  this  decision 
and  supported  his  position  by  the  following  line  of  argument : 
The  effect  of  the  order  issued  to  Brigadier  General  Stern- 
berg  was  the  same  as  if  separate  and  distinct  orders  had 
been  given  for  each  portion  of  the  journey.17  In  obeying 
the  orders  to  proceed  from  Manila  to  Nagasaki  he  was  not 
traveling  from  our  island  possessions  to  the  United  States ; 
neither  was  he  in  going  from  Yokohama  to  San  Francisco 
and  therefore  the  whole  journey  from  Manila  to  Nagasaki, 
from  Nagasaki  to  Yokohama,  and  from  Yokohama  to  San 
Francisco  carried  with  it  mileage  at  seven  cents  per  mile. 

A  whole  line  of  decisions  concerning  sea  travel  of  officers 
to  and  from  our  island  possessions  under  provisos  limiting 
payments  on  account  of  such  travel  to  actual  expenses,  has 
shown  a  tendency  to  interpret  the  proviso  in  favor  of  the 
officer  even  when  a  construction  no  more  liberal  than  is 
ordinarily  followed  would  have  operated  to  the  advantage 
of  the  government.  Considering  the  fact  that  mileage  is 
technically  regarded  as  an  allowance  for  expenses  actually 
incurred  and  not  in  any  sense  as  compensation,  the  reasons 
for  observing  a  construction  favorable  to  the  government 
with  reference  to  provisions  for  extra  pay,  would  seem  to 

16  VIII  Comp.  Dec.,  577. 

1THe  cited  the  precedent  established  in  I  Comp.  Dec.,  29,  where  it 
was  laid  down  that  an  order  to  travel  to  a  designated  point,  perform 
certain  duty,  and  return  is  in  effect  two  distinct  orders. 


JURISDICTION   OVER  DISBURSEMENTS  65 

apply  with  equal  force  here.  Upon  that  basis  the  position 
of  the  Auditor  who  pointed  out  that  on  principles  of  justice 
reimbursement  was  fully  made  when  actual  expenses  were 
repaid,  would  appear  fully  as  tenable  as  that  adopted  by 
the  Assistant  Comptroller. 

Closely  connected  with  the  questions  concerning  pay  and 
allowances  are  those  relating  to  bounties  and  pensions. 
Bounty  is  technically  considered  as  an  allowance,  and  a 
soldier's  right  to  it,  except  as  otherwise  specifically  provided 
in  the  bounty  laws,  depends  upon  the  same  conditions  re- 
garding service  and  forfeitures  as  other  allowances.18  The 
question,  however,  has  been  the  subject  of  much  legislation 
and  executive  construction.  A  large  number  of  the  de- 
cisions have  had  the  effect  of  forestalling  claims  obviously 
in  the  nature  of  "  grabs  "  under  liberal  bounty  provisions. 
This  fact  is  particularly  patent  in  connection  with  the  effect 
of  Congressional  removal  of  charges  of  desertion. 

The  earliest  case  decided  by  the  department,  as  at  present 
organized,  was  the  claim  of  a  private,  who  enlisted  in  1861 
for  three  years.  A  year  later  he  deserted  and  after  be- 
ing absent  as  a  deserter  for  two  months,  was  again  mus- 
tered into  service  for  three  years  as  a  sergeant  in  another 
regiment.  He  was  discharged  as  a  corporal  with  his  com- 
pany at  the  close  of  the  war.  By  the  operation  of  an  act 
of  May  17,  i886,19  supplemented  by  the  act  of  March  2, 
i889,20  the  charge  of  desertion  was  removed  and  the  soldier 
furnished  with  a  discharge  from  the  day  of  his  desertion. 
On  the  strength  of  this  discharge  he  made  claim  not  only 
for  pay  and  allowances,  including  one  hundred  dollars 
bounty,  under  the  act  of  April  2,  i872,21  which  granted 

18  III  Comp.  Dec.,  684. 

19  24  U.  S.  St.,  51. 

30  25  U.  S.  St.,  869,  sec.  3. 
21  17  U.  S.  St.,  55. 


66          JUDICIAL  WORK  OF   COMPTROLLER  OF   TREASURY 

bounty  to  those  who  had  enlisted  prior  to  July  22,  1861,  but 
likewise  for  veteran  bounty,  his  status  as  veteran  having 
arisen  as  he  claimed,  from  his  service  under  the  first  en- 
listment. As  the  bounty  provisions  required  nine  months 
service22  and  an  honorable  discharge  or  a  minimum  of  two 
years  service,  the  claim  was  clearly  unfounded  and  was 
accordingly  disallowed.23 

More  difficult  cases  arise  when  disabilities  are  removed 
by  private  legislation.  A  typical  case  decided  in  I8Q6,24 
had  to  do  with  a  soldier  enlisted  for  three  years  in  1861 
as  a  private.  In  1864,  he  reenlisted  as  a  veteran,  deserted 
after  six  months,  was  arrested  two  weeks  later,  and  again 
deserted  at  the  expiration  of  another  month.  In  1880,  the 
charge  of  desertion  was  removed  by  a  private  act,25  and 
an  honorable  discharge  ordered.  Claim  for  pay  and  bounty 
was  disallowed  under  this  act  by  the  Second  Comptroller 
on  the  ground  that  the  soldier  was  indebted  to  the  United 
States  in  an  amount  exceeding  all  credits.26 

In  1896,  Congress  by  another  private  act  directed  the  ac- 
counting officers  to  liquidate  and  settle  the  soldier's  claim 
and  appropriated  three  hundred  dollars  to  cover  whatever 
amount  might  be  awarded.27  After  reexamining  the  ac- 
count in  compliance  with  the  specific  direction  of  Congress, 
the  Auditor  placed  the  soldier  on  the  footing  of  a  veteran 
discharged  for  close  of  the  war  and  granted  an  allowance 
for  veteran  bounty  and  travel.  This  finding  was  reversed 

22  General  orders  nos.  191  and  216,  Adjutant  General's  Office,  series 
of  1863,  as  quoted  in  I  Comp.  Dec.,  562. 
23 1  Comp.  Dec.,  561. 

24  III  Comp.  Dec.,  109. 

25  21  U.  S.  St.,  546. 

28  Digest  Second  Comp.  Dec.,  Vol.  I,  sees.  296,  297,  298  as  referred 
to  in  III  Comp.  Dec.,  in. 
27  29  U.  S.  St.,  723. 


JURISDICTION  OVER  DISBURSEMENTS  67 

by  the  acting  Comptroller  who  treated  the  discharge  upon 
removal  of  a  charge  of  desertion,  as  tantamount  to  a  dis- 
charge for  the  soldier's  convenience,  since  to  consider  him 
discharged  for  close  of  the  war  would  put  a  deserter  on  a 
better  footing  than  a  soldier  discharged  at  the  same  time 
at  his  own  request  or  on  account  of  sickness,  which  he  held 
could  not  have  been  the  intention  of  Congress.  The  effect 
given  to  the  act  of  1896,  was  simply  to  authorize  and  re- 
quire the  accounting  officers  to  reexamine  the  claim  and  to 
allow  any  balance  they  might  find  due.  Otherwise  it  did 
not  change  the  soldier's  status  nor  confer  on  him  any  right 
he  did  not  possess  under  the  earlier  statute.28 

Questions  connected  with  the  civil  service,  concern  almost 
exclusively  the  claims  of  officers.29  One  of  the  most  inter- 

28  In   both   the   above   cases   the   construction    adopted   was   calculated 
to  carry  out  the  terms  of  the  statutes  in  such  a  way  as  to  minimize 
injustice  to   soldiers   against  whom   no   charge   of  desertion   had  been 
entered. 

In  some  cases  rigid  adherence  to  the  terms  of  such  statutes  operates 
in  favor  of  the  claimant.  Thus  it  was  held  under  an  act  for  the 
relief  of  a  volunteer  soldier  making  no  provision  for  his  discharge,  but 
directing  the  removal  of  the  charge  of  desertion  and  the  substitution 
of,  "  absented  himself  without  leave  .  .  .  reenlisted  .  .  .  and  was  honor- 
ably mustered  out,"  that  since  the  relief  act  created  a  right  which  did 
not  before  exist,  the  statute  of  limitations  did  not  apply.  Ill  Comp. 
Dec.,  541. 

On  the  subject  of  pensions,  questions  which  have  come  before  the 
Comptroller's  office  have  concerned  for  the  most  part  minor  matters  of 
procedure.  This  subject  has  evidently  been  so  thoroughly  covered  by 
specific  legislation  as  to  leave  little  room  for  executive  construction. 
There  have  been  a  few  rulings  upon  the  provisions  for  reimbursement  to 
cover  th«  expenses  of  the  last  illness  of  pensioners  (I  Comp.  Dec.,  207 ; 
II,  149;  VII,  208,  613,  841,  822;  VIII,  534),  and  for  other  payments 
to  survivors  (II  Comp.  Dec.,  381  ;  III,  502  ;  VIII,  428),  but  the  juris- 
diction exercised  by  the  Comptroller  in  this  field  presents  no  principles 
sufficiently  new  to  demand  particular  attention. 

29  Questions  concerning  employees  are  settled,  as  are  all  questions  of 
government    contract,    by    an    application    of    the   general    principles    of 
contract  law. 


68          JUDICIAL  WORK  OF   COMPTROLLER  OF   TREASURY 

esting  line  of  cases  has  arisen  in  connection  with  recess  ap- 
pointments. The  revised  statutes,  section  1761,  provide 
that  in  case  of  appointments  requiring  the  confirmation  of 
the  Senate  no  salary  shall  be  paid  to  any  person  appointed 
during  recess  to  fill  a  vacancy  which  existed  while  the 
Senate  was  in  session.  When  an  office  is  created  by  an 
appropriation  or  other  act  which  goes  into  effect  at  a  date 
subsequent  to  its  passage  it  devolves  on  the  Comptroller  to 
determine  when  the  vacancy  occurred.  It  has  been  held 
that  in  such  cases  there  is  no  vacancy  until  the  date  on 
which  the  appropriation  became  available  and  that  thereto- 
fore, if  the  Senate  adjourns  before  that  date,  an  appointee 
named  after  adjournment  is  not  precluded  from  receiving 
compensation  prior  to  his  confirmation.30 

A  somewhat  different  situation  arises  when  the  Senate 
fails  to  confirm  an  appointment  made  by  the  President,  as 
appears  in  the  following  case.31  On  April  12,  1894,  the 
President  sent  to  the  Senate  the  nomination  of  one  Mar- 
bury  for  United  States  Attorney  for  Maryland,  to  succeed 
an  incumbent  whose  term  of  office  was  to  expire  during  the 
following  month.  At  the  expiration  of  the  term,  the 
nomination  of  Marbury  had  not  been  confirmed  and  the 
Circuit  Justice  of  Maryland  appointed  the  late  incumbent 
to  act  until  the  person  appointed  by  the  President  should 
qualify.32  As  the  Senate  adjourned  on  August  28,  1894, 
without  having  acted  on  Mr.  Marbury's  nomination,  the 
President  again  named  his  unconfirmed  appointee  to  fill 
the  office  until  the  end  of  the  next  session  of  the  Senate.33 
Having  again  sent  the  nomination  to  the  Senate  on  Decem- 

80  III  Comp.  Dec.,  82. 

81  III  Comp.  Dec.,  89. 

82  Under  power  granted  in  sec.  793,  rev.  st. 

83  Constitution,  Art.  II,  sec.  2. 


JURISDICTION  OVER  DISBURSEMENTS  69 

her  fifth  without  its  being  acted  upon  when  that  body 
adjourned  March  4,  1895,  the  President  on  that  same  day 
again  appointed  Mr.  Marbury  to  hold  office  until  the  end  of 
the  next  session  of  the  Senate.  The  same  nomination  was 
once  more  sent  the  Senate  on  December  4,  1895,  without 
having  been  acted  upon  when  that  body  adjourned  on  June 
u,  1896,  and  the  day  following  Mr.  Marbury  was  again 
appointed  by  the  President  to  hold  office  until  the  next 
session  of  the  Senate. 

When  Mr.  Marbury's  claim  for  salary  came  before  Comp- 
troller Bowler,  he  decided  that  the  statutory  power  of  the 
Circuit  justice  was  an  emergency  measure,  which  did  not 
contemplate  the  filling  of  a  vacancy  in  any  constitutional 
sense.  The  vacancy  therefore  existed  during  ihe  session 
of  the  Senate,  and  Mr.  Marbury  was  therefore  precluded 
under  section  176  revised  statutes,  from  receiving  salary 
for  the  time  covered  by  his  first  appointment.  The  vacancy 
however  which  ensued  at  the  expiration  of  this  time  was 
interpreted  as  occurring  during  a  recess  of  the  Senate,  and 
salary  was  allowed  for  the  full  time  served  under  the  ap- 
pointment of  March  4,  1895,  likewise  under  the  appoint- 
ment of  June  12,  1896. 

The  considerations  upon  which  this  decision  was  based 
appear  more  fully  in  a  case  concerning  the  appointment  of 
a  district  judge  of  North  Carolina,  decided  by  Comptroller 
Tracewell  on  May  9,  i899.34  On  January  12,  1898,  Judge 
Dick  of  the  western  district  of  North  Carolina  tendered  his 
resignation  to  take  effect  upon  the  appointment  and  quali- 
fication of  his  successor.  The  following  day  the  President 
sent  the  name  of  Hamilton  G.  Ewart  to  the  Senate  which 
failed  to  act  upon  the  nomination  before  adjournment  on 

84  V  Comp.  Dec.,  785. 


7O          JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

July  12,  1898.  Thereupon  the  President  conferred  upon 
Judge  Ewart  a  recess  appointment  which  commissioned  him 
to  serve  until  the  end  of  the  next  session  of  Congress.  He 
was  again  nominated  for  the  position  December  13,  1898, 
but  Congress  adjourned  March  4,  1899,  the  Senate  having 
taken  no  action,  and  he  received  a  second  recess  appoint- 
ment under  which  he  duly  qualified.  In  addition  to  the 
considerations  involved  in  the  previous  case,  the  question 
was  raised,  whether  under  the  Constitutional  requirement 
that  judges  hold  office  during  good  behavior,  the  President 
is  authorized  to  fill  a  judicial  office  by  temporary  appoint- 
ment.35 Following  the  practice  of  a  century,  the  Comp- 
troller held  that  the  constitutional  provision  for  tenure 
during  good  behavior  was  to  be  interpreted  in  connection 
with  the  power  to  make  recess  appointments  and  that  the 
judge  was  entitled  to  salary  under  the  first  appointment. 
The  second  appointment  raised  again  the  question  of 
vacancy  and  after  bringing  in  review  the  foregoing  decision 
of  Comptroller  Bowler36  as  well  as  repeated  opinions  of 
Attorneys  General,37  the  payment  of  salary  was  allowed. 

A  most  important  line  of  Comptroller's  cases  relates  to 
the  subject  of  fees.  Though  sometimes  loosely  used  to 

85  In  the  case  of  ex  parte  Henry  Ward,  173  U.  S.  452  it  was  con- 
tended that  no  such  appointment  could  be  legally  made.  The  court  did 
not  express  an  opinion  on  the  contention  but  attention  was  called  in  the 
report  to  the  provision  for  recess  appointments  above  referred  to. 

The  Ewart  case  reverted  to  the  somewhat  hair-splitting  question 
whether  a  recess  appointment  fills  the  office  or  merely  the  existing 
vacancy.  The  whole  question  was  important  in  this  case  only  as  it 
concerned  the  salary  provision  of  section  1751  Revised  Statutes  since 
it  had  been  held  by  great  weight  of  authority,  that  for  the  legality  of 
an  appointment  it  is  immaterial  whether  a  vacancy  first  occurs  or 
merely  continues  during  recess. 

88  III  Comp.  Dec.,  89. 

8T  2  Op.  A.  G.,  336,  525  ;  3  ib.,  673 ;  4  ib.,  523 ;  10  ib.,  356. 


JURISDICTION  OVER  DISBURSEMENTS  Jl 

include  payments  for  mileage  and  expenses,  the  term  fee 
in  its  proper  sense  means  compensation  for  a  service.  There 
is  a  strong  tendency  at  present  to  abandon  this  form  of 
compensation ;  wherever  it  has  been  preserved,  recent  legis- 
lation has  sought  to  simplify  the  subject  and  bring  it  within 
definite  and  specific  provisions  of  law.38  Fees  are  now 
confined  for  the  most  part  to  court  officers  such  as  mar- 
shals, district  attorneys  and  clerks  of  court,  and  to  some 
extent,  the  members  of  the  consular  service.  In  some 
cases  the  whole  fee  is  retained  as  compensation  by  the 
officer  who  imposes  it,  in  others  it  is  accounted  for  and 
retained  only  in  part,  while  in  still  others  the  whole  amount 
collected  is  turned  into  the  treasury,  the  officer  receiving 
a  direct  salary  compensation  from  the  government. 

Accounting  officers  experience  considerable  difficulty  in 
securing  a  proper  accounting  of  fees  collected  by  the  officers 
of  the  courts.  Under  the  present  law39  every  clerk  of  a 
United  States  District  or  Circuit  court  must  report  to  the 
Attorney  General  every  six  months,  all  the  fees  and  emolu- 
ments of  his  office  of  every  description  and  it  is  especially 
provided  that  the  report  shall  include  naturalization  fees 
and  fees  collected  from  attorneys  admitted  to  the  bar. 

Some  clerks  of  court  were  reluctant  to  accept  the  strin- 
gent provisions  of  the  present  law.  Under  earlier  legisla- 
tion although  the  Supreme  Court  had  declared  the  practice 
illegal,40  clerks  had  not  been  inclined  to  report  naturaliza- 

38  Cf.  especially  in  this  connection  act  of  May  28,  1896.  29  U.  S.  St., 
ch.  252,  sees.  6-24. 

89  Act  of  June  28,  1902.      32  U.  S.  St.,  475. 

40  Bean  v.  Patterson,  no  U.  S.,  401.  The  court  seems  to  have  later 
made  an  exception  of  naturalization  fees,  holding  that  they  were  not 
official  emoluments  which  had  to  be  accounted  for  (U.  S.  v.  Hill,  120 
U.  S.,  169).  Congress  evidently  intended  to  have  them  included  and 
when  a  law  of  March  15,  1898  (30  U.  S.  St.,  317)  did  not  satisfactorily 
accomplish  that  result,  the  law  of  1902  above  referred  to  was  enacted. 


72          JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

tion  and  admission  fees  but  to  regard  them  as  personal 
gain  over  and  above  the  maximum  legal  salary.  In  the 
face  of  the  obvious  intent  of  the  law  the  clerk  of  a  United 
States  District  court  filed  a  protest  against  being  compelled 
to  account  for  fees  of  this  sort,  his  contention  being  that 
while  the  law  required  such  fees  to  be  reported  it  did  not 
compel  an  accounting.  The  Comptroller,  however,  held 
otherwise,  in  harmony  with  the  evident  intention  of  the 
law.41 

The  general  principle  followed  in  fee  cases  is  that  no 
fee  will  be  allowed  unless  the  specific  provisions  of  law 
have  been  fulfilled.  This  principle  was  well  illustrated  by 
a  case  decided  by  Comptroller  Tracewell  in  1903.  The 
case  concerned  a  fee  claimed  by  a  United  States  commis- 
sioner in  Alabama  for  hearing  a  Chinese  exclusion  case. 
Two  Chinese  charged  with  being  unlawfully  in  the  United 
States,  were  released  on  bail  and  failed  to  appear  for  trial. 
The  commissioner  claimed  that  although  there  had  been  no 
trial  there  had  been  such  a  final  determination  of  the  case 
as  entitled  him  to  his  fee.  His  claim  was  disallowed,  the 
Comptroller  holding  that  while  it  was  well  founded  in 
equity,  there  had  been  no  "  final  determination  "  of  the  case 
such  as  under  the  law  would  justify  the  allowance  of  the 
claim.42 

When  a  bona  fide  complete  service  is  performed  such  as 
the  law  contemplated,  the  allowance  will  not  generally  be 
defeated  by  a  mere  technicality.  The  consular  regulations 
contain  very  strict  provisions  prohibiting  consular  officers 
from  receiving  profit  on  account  of  money,  supplies  or  other 
relief  furnished  to  seamen.43  A  tariff  of  consular  fees  au- 

41 IX  Comp.  Dec.,  688. 
42 IX  Comp.  Dec.,  649. 
48  Rev.  St.,  sec.  1719,  Consular  Regulation  of  1856. 


JURISDICTION   OVER  DISBURSEMENTS  73 

thorized  by  the  President  on  October  I,  1897,  contained 
the  item,  "  services  to  vessels."  Under  this  tariff  there  was 
presented  to  the  Treasury  Department  a  claim  for  thirty- 
six  dollars  by  the  consul  at  Yarmouth,  Nova  Scotia,  for 
eighteen  orders  sending  seamen  to  hospital.  The  seamen 
being  disabled  were  discharged  at  the  same  time  the  orders 
were  issued  and  the  question  was  raised  whether  by  the 
discharge  they  did  not  become  distressed  seamen  in  a  way 
to  bring  the  orders  under  the  prohibition  of  section  1719 
revised  statutes.  Comptroller  Tracewell  held  that  the  fees 
were  provided  for  in  the  schedule  of  tariffs  of  October  i, 
1897,  and  that  the  consul  was  entitled  to  them  regardless 
of  whether  an  order  was  issued  before  or  after  the  seamen 
were  discharged.44 

The  accounting  officers  are  frequently  called  upon  to  re- 
view claims  for  fees  when  no  bona  fide  service  has  been 
performed.  In  other  cases  a  single  service  will  be  divided 
into  several  parts  in  order  to  make  it  appear  that  several 
distinct  services  have  been  performed  when  in  reality  the 
whole  ought  actually  to  be  included  in  a  single  operation. 
The  difficulties  presented  by  such  cases  are  well  brought 
out  in  a  claim  for  fees  entered  by  the  clerk  of  a  district 
court  in  North  Carolina.45  The  fees  were  claimed  for 
"  entering  requisitions  and  orders  for  record  books,  copies 
of  same  and  entering  openings  and  adjournments  of  court 
for  the  purpose  of  making  said  entries,  and  the  clerk's 
per  diem  fee  for  one  day  upon  which  such  an  entry  was 
made."  There  were  also  various  minute  entries  scattered 
through  the  account.46 

"X  Comp.  Dec.,  709. 

45  X  Comp.  Dec.,  712. 

"The  law  of  1902  (supra,  p.  71)  did  not  abolish  the  fee  system  but 
provided  that  all  fees  over  and  above  a  fixed  maximum  salary  should  be 
turned  into  the  treasury. 


74          JUDICIAL  WORK  OF  COMPTROLLER  OF   TREASURY 

It  appeared  that  the  record  books  mentioned  in  the  ac- 
count were  purchased  by  order  of  the  court,  and  although 
the  Attorney  General  had  made  simple  and  adequate  pro- 
vision for  the  procurement  of  all  necessary  record  books, 
it  is  a  general  principle  of  law  that  when  the  court  makes 
an  order  the  clerk  is  entitled  to  his  fee  for  entering  and 
also  to  per  diem  fees  for  all  services  rendered  under  the 
order,47  yet  where  the  only  function  of  an  order  seems  to 
be  to  increase  the  fees  of  the  clerk,  there  is  some  authority 
for  disallowing  any  claims  arising  under  it.48  This  excep- 
tion to  the  general  rule  that  a  clerk  is  entitled  to  a  fee  for 
services  performed  by  the  order  of  the  court  is  essentially 
the  same  as  that  laid  down  by  the  Court  of  Claims  in  Mar- 
tin v.  United  States.49  In  this  case  the  court  said : 

Where  the  only  question  is  whether  the  service  was  rendered, 
or  whether  it  was  necessary,  or  whether  it  was  required  by 
the  court,  the  approval  of  the  account  [by  the  court]  makes 
it  evidence  prima  facie.  Conversely,  where  the  question  is  one 
of  law,  where  the  controversy  is  whether  a  statute  authorized 
the  service,  whether  one  provision  of  the  fee  bill  or  another 
should  regulate  the  compensation,  the  approval  of  the  account 
raises  no  presumption  and  is  wholly  inoperative  in  an  action 
on  the  account. 

Upon  the  basis  of  those  cases  the  Comptroller  ruled  that 
so  much  of  the  claim  for  fees  as  was  covered  by  the  order 
of  the  court  for  the  purchase  of  record  books  should  be 
allowed  without  questioning  the  necessity  of  the  order.  It 
did  not  appear,  however,  that  the  judge  had  ordered  the 
opening  and  closing  of  court  for  the  entry  of  the  orders  for 

47  U.  S.  v.  Payne,   147  U,  S.,  687.      U.  S.  v.  Van  Duzee,  140  U.  S., 
169.      U.  S.  v.  Finnell,  185  U.  S.,  236. 

48  U.  S.  v.  King,  147  U.  S.,  676. 
"Martin  v.  U.  S.,  26  Ct.  Cls.,  160. 


JURISDICTION   OVER  DISBURSEMENTS  75 

books  and  as  such  formality  was  obviously  uncalled  for, 
since  the  orders  were  in  the  nature  of  vacation  orders  which 
did  not  require  the  court  to  be  opened  for  their  entry,  all 
per  diem  and  other  fees  connected  with  such  opening  and 
closing  of  court  were  rejected. 

The  second  part  of  the  claim  had  to  do  with  minute  en- 
tries scattered  through  the  account.  This  claim  was  like- 
wise for  a  service  ordered  by  the  court  and  one  which  the 
court  had  approved.  It  was  obvious,  however,  that  the 
record  had  been  split  up  into  a  great  many  separate  parts, 
captions  of  the  case  being  repeated  in  each  separate  entry 
in  a  way  to  greatly  increase  the  amount  of  fees.  The  fol- 
lowing is  the  Comptroller's  observation  upon  them: 

The  only  comment  I  desire  to  make  relative  to  these  entries, 
their  numbers,  and  their  manner  of  making  is  that  the  judge 
who  permitted  and  adopted  them  must  assume  all  responsi- 
bility therefor. 

If  these  entries  had  been  made  on  the  motion  of  the  clerk 
and  not  under  an  order  of  the  court,  I  should  not  hesitate  to 
hold  that  as  a  whole  they  were  unconscionable,  vexatious,  and 
evidently  made  with  the  sole  view  of  multiplying  fees,  and  not 
the  result  of  the  orderly  dispatch  of  business.  The  record  of 
the  proceedings  of  a  court,  at  least  when  collaterally  attacked, 
import  absolute  verity,  and  when  the  record  discloses  the  fact 
that  a  certain  motion  was  made,  or  other  proceedings  in  a  case 
had,  however  fantastic  and  improbable  such  record  may  appear, 
one  must  shut  his  eyes,  stifle  his  sense  of  the  improbable,  and 
assume  the  record  speaks  the  truth.  .  .  .  This  account,  no  doubt 
was  presented  to  the  court  and  approved.  This  presentation 
and  approval  by  the  court  is  prima  facie  evidence  of  every 
question  of  fact.  ...  If,  however,  the  facts  are  before  the 
accounting  officers,  and  they  show  that  the  court  was  mistaken 
as  to  any  of  these  facts,  it  is  our  duty  and  province,  notwith- 
standing disapproval  of  the  court,  to  allow  or  disallow  the 
charges  in  accordance  with  the  true  state  of  the  facts. 


y6          JUDICIAL  WORK  OF   COMPTROLLER  OF   TREASURY 

Upon  questions  of  law  arising  in  these  accounts,  such  prima 
facie  effect  is  not  necessarily  given  to  the  act  of  approval  by 
the  court.  .  .  .  The  circuit  court  of  appeals  in  United  States  v. 
Marsh  (106  Fed.  Rep.,  477),  .  .  .  says:  No  rule  of  court,  which 
separated  a  single  order  or  proceeding  into  separate  parts, 
would  justify  the  clerk  in  doubling  the  charge. 

In  accordance  with  this  decision  and  with  his  own  decision 
in  an  earlier  case,50  the  Comptroller  held  that  the  claim  for 
so  many  of  the  entries  as  constituted  palpable  separation 
into  parts  of  the  same  service  must  be  disallowed.  The 
extreme  difficulty  of  applying  the  law  in  a  way  to  defeat 
even  obviously  improper  claims,  which  is  so  well  illustrated 
in  this  case,  will  doubtless  lead  in  time  to  the  abandonment 
of  the  whole  system  of  compensation  by  fees. 

The  subject  of  mileage  as  it  concerns  civil  officers  pre- 
sents essentially  similar  questions  to  those  already  consid- 
ered with  reference  to  officers  of  the  army  and  navy.51 
The  question  has  sometimes  arisen  whether  members  of 
legislative  bodies  whose  seats  have  been  successfully  con- 
tested by  opposing  candidates  are  entitled  to  mileage  in  re- 
turning to  their  homes.  Such  cases  have  usually  concerned 
members  of  territorial  legislatures,  and  it  would  seem  from 
an  order  to  territorial  secretaries  issued  by  the  First  Comp- 
troller during  the  eighties,  that  it  was  formerly  the  practice 
to  allow  both  parties  full  mileage  both  ways  provided  the 
contestant  were  successful.52  This  practice  has  now  been 
reversed  so  far  as  it  applies  to  the  return  mileage  of  an 
ejected  member,  on  the  ground  that  from  the  minute  the 
contest  is  decided  against  him  he  is  no  longer  a  member. 

50  V  Comp.  Dec.,  120. 

51  Cf.  supra,  pp.  62-65  for  further  discussion  on  mileage. 

62  Circular  of  instruction  cited  by  Secretary  of  New  Mexico  Territory 
in  justificaton  of  a  similar  allowance  in  1903.  X  Comp.  Dec.,  428. 


JURISDICTION   OVER  DISBURSEMENTS  77 

A  certificate  of  election  would  constitute  prima  facie  evi- 
dence of  membership  and  justify  allowance  of  mileage  in 
going  to  the  place  of  assembly  regardless  of  the  contest. 
In  case  a  contestant  succeeds  in  unseating  a  member,  he 
would  be  regarded  as  the  rightful  member  from  the  start 
and  entitled  to  mileage  both  ways;  should  he  fail  he  would 
of  course  receive  no  mileage  at  all.53 

The  problems  which  are  presented  to  the  accounting 
officers  in  connection  with .  specific  mileage  allowance  or 
definite  per  diem  allowance  for  expenses,  are  of  compara- 
tively simply  solution.  When,  however,  actual  expenses 
are  reimbursed,  or  when  a  reimbursement  of  traveling  ex- 
penses is  combined  with  a  per  diem  subsistence  allowance, 
puzzling  questions  frequently  arise.  It  is  the  practice  of 
the  department  even  at  the  risk  of  injustice  to  individuals, 
to  settle  all  such  cases  as  nearly  as  possible  in  accordance 
with  the  strict  letter  of  law  although  at  times,  in  the  interest 
of  the  treasury,  the  intent  of  Congress  will  be  considered. 
A  case  in  point  concerned  the  case  of  a  policeman  of  the 
District  of  Columbia  under  a  provision  for  expenses  "  dur- 
ing disability  encountered  in  the  discharge  of  duty."  The 
Comptroller  held  that  expenses  during  disability  from  a 
stroke  of  paralysis  could  not  be  reimbursed  since  the  law 
seemed  to  contemplate  disability  from  bodily  injury.54 

Two  cases  under  the  act  for  the  Louisiana  Purchase  Ex- 
position illustrate  how  the  same  rule  may  appear  extreme 
in  some  cases  while  in  other  it  is  clearly  necessary  to  fore- 
stall obviously  improper  payments.  One  of  the  Commis- 
sioners of  the  exposition  under  an  appropriation  of  five 
thousand  dollars  for  "  salary  and  expenses  "  presented  a 
claim  for  hotel  expenses  in  addition  to  salary.  The  lan- 

68 1  Comp.  Dec.,  245  ;  X,  425. 
64  X  Comp.,  Dec.,  789. 


78          JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

guage  of  the  law  was  clear  and  the  claim  was  disallowed.55 
In  the  second  case  a  disbursing  clerk  of  the  government 
board  demanded  reimbursement  for  calling  cards  and  ex- 
penses for  telegraphing.  In  supporting  the  first  item  he 
claimed  that  cards  bearing  his  name  and  title  were  neces- 
sary for  purposes  of  introduction  at  various  places  of 
business.  The  Comptroller  held  that  evidence  of  the 
clerk's  position  was  furnished  by  his  commission  and  that 
if  for  his  own  convenience  he  chose  to  employ  calling  cards 
instead,  he  should  personally  bear  the  expense.59 

The  claim  for  expense  for  telegraphing  which  the  clerk 
presented  at  the  same  time  involved  the  question,  what  is 
to  be  included  in  subsistence  under  a  per  diem  allowance, 
and  what  expenses  are  properly  chargeable  to  transporta- 
tion. The  telegrams  in  question  had  to  do  with  reserving 
rooms  in  St.  Louis  for  the  use  of  the  board,  and  it  was  held 
that  under  an  allowance  of  eight  dollars  per  diem  in  lieu  of 
subsistence  the  cost  of  rooms  and  all  expense  incident  to 
obtaining  them  was  a  private  matter  of  the  members  of  the 
board  in  which  the  government  had  no  interest  and  that  the 
claim  could  not  be  included  in  transportation  expenses  to 
be  borne  by  the  government.57 

A  recent  decision  concerning  the  pay  and  expenses  of 
special  agents  employed  in  the  Bureau  of  Corporations  at- 
tempts to  draw  the  line  between  traveling  expenses  and  sub- 
sistence. The  appropriation  under  consideration  employed 
the  following  language  :58 

For  compensation,  to  be  fixed  by  the  Secretary  of  Commerce 
and  Labor,  of  such  special  agents  in  the  Bureau  of  Corpora- 

65  X  Comp.  Dec.,  66. 
06  X  Comp.  Dec.,  506. 

67  X  Comp.  Dec.,  508. 

68  32  U.  S.,   1081.      Similar  language  is  used  in  the  appropriation  of 
March  18,  1904,  for  the  year  1904-1905. 


JURISDICTION   OVER  DISBURSEMENTS  79 

tions,  and  for  per  diem,  subject  to  such  rules  and  regulations 
as  the  Secretary  of  Commerce  and  Labor  may  prescribe,  in 
lieu  of  subsistence  at  a  rate  not  exceeding  four  dollars  per 
day  to  each  of  said  special  agents,  while  absent  from  their 
homes  on  duty,  and  for  actual  necessary  traveling  expenses 
for  said  special  agents  including  necessary  sleeping  car  fares, 
sixty  thousand  dollars. 

The  Secretary  requested  a  ruling  of  the  Comptroller 
whether  under  this  appropriation  he  was  authorized  to  pro- 
mulgate a  regulation  stipulating,  that  in  addition  to  per  diem 
allowance  in  lieu  of  subsistence,  expenses  would  be  confined 
to  actual  and  necessary  traveling  expenses  usual  and  es- 
sential to  the  comfort  of  travelers  and  to  embrace  among 
other  things,  reasonable  charge  for  laundry  work  and  baths 
when  travel  continues  for  a  week  or  more,  the  charge  for 
baths  not  to  exceed  fifty  cents  each. 

A  similar  question  had  been  presented  earlier,  when  it 
was  held  that  an  officer  receiving  per  diem  in  lieu  of  sub- 
sistence was  not  entitled  to  reimbursement  for  expenditures 
for  subsistence  as  a  part  of  traveling  expenses.69  It  was 
further  held  that  nothing  could  be  included  as  a  part  of 
traveling  expense  which  could  properly  be  regarded  as  sub- 
sistence.60 In  a  later  case  ordinary  traveling  expenses  have 
been  definitely  differentiated  into  two  classes  consisting  first 
of  expenses  for  transportation  and  those  incident  thereto, 
and  secondly  expenses  for  subsistence  and  those  incident 
thereto.  The  expense  of  laundry  was  in  that  case  held  to 
belong  in  the  second  category.61 

In  addition  to  reiterating  the  decision  in  these  cases  the 
Comptroller  pointed  out  that  Congress  by  the  words  "  in- 
cluding necessary  sleeping  care  fares  "  used  in  the  appro- 
priation act  in  question,  had  recognized  a  doubt  which  had 

*"  X  Comp.  Dec.,  508. 

60  IV  Comp.  Dec.,  424.  "VI  Comp.  Dec.,  45. 


8O          JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

formerly  existed  as  to  whether  those  expenses  were  to  be 
classed  as  transportation  or  as  subsistence.  Although  sleep- 
ing car  expenses  had  already  been  held  to  be  more  in  the 
nature  of  transportation  than  of  subsistence,62  Congress  by 
specially  stipulating  that  they  were  to  be  classed  among 
traveling  expenses,  subject  to  reimbursement,  had  evidently 
intended  that  all  other  expenses  aside  from  transportation 
were  to  be  regarded  as  subsistence  to  be  covered  by  the 
agent  himself  from  his  per  diem  allowance. 

The  Seceratry  was  accordingly  advised  that  the  regula- 
tion proposed  by  which  laundry  and  baths  were  to  be  in- 
cluded in  necessary  traveling  expenses,  would  not  be  per- 
missible. This  holding  would  not  of  course  affect  a  case 
in  which  the  law  made  no  provision  for  per  diem  in  lieu 
of  subsistence.  If  the  head  of  the  department  were  au- 
thorized as  is  sometimes  done  to  provide  as  a  part  of  the 
compensation  of  an  office,  a  per  diem  allowance,  no  com- 
pensation having  been  fixed  by  law,  he  would  then  have 
power  to  stipulate  that  such  allowance,  although  in  terms, 
in  lieu  of  subsistence,  should  not  include  laundry,  baths  or 
other  items  which  he  chose  to  exclude.63 

While  there  are  obvious  general  principles  applying  to 
the  pecuniary  relations  between  the  government  and  its 
servants,  the  Comptroller's  chief  task  is  to  ascertain  the 
meaning  of  specific  provisions  of  statutes.  The  great  im- 
portance of  his  jurisdiction  rests  upon  the  magnitude  of 
the  aggregate  interests  involved.  From  the  great  number 
of  cases  and  their  individually  small  amounts  it  is  obvious 
that  but  few  of  them  can  ever  reach  the  courts.  The  de- 
cisions of  the  Comptroller  determine  the  pecuniary  situation 
of  every  officer  and  employee  of  the  government,  and  to 
all  intents  and  purposes  his  decisions  in  this  field  are  final. 

82  V  Comp.  Dec.,  508. 
83 IV  Con  p.  Dec.,  424. 


CHAPTER   VI 

INTERPRETATION   OF   CONTRACTS 

When  the  United  States  enters  into  contract  relations 
with  its  citizens,  it  subjects  itself  to  the  same  rules  of  right 
and  justice  which  govern  dealings  between  individuals,1  and 
contracts  of  this  kind  are  interpreted  in  the  main  according 
to  the  principles  of  municipal  contract  law.  The  initial 
interpretation  of  contracts  rests  ordinarily  to  a  large  extent 
with  one  of  the  parties,  and  only  in  case  there  is  disagree- 
ment or  dissent,  is  recourse  taken  to  the  courts.  The  same 
recourse  to  the  courts  obtains  for  contracts  with  the  gov- 
ernment, and  while  it  would  probably  not  be  denied  that  a 
contract  with  the  government  is  regarded  in  a  somewhat 
different  light  from  an  ordinary  contract  between  individ- 
uals, nevertheless  the  fact  that  the  judicial  branch  of  the 
government  may  and  does  come  in  to  adjust  disagreements, 
necessitates  an  adherence  on  the  part  of  the  Comptroller 
to  recognized  principles  of  legal  construction.2 

*Mann  v.  U.  S.,  3  Ct.  Cls.,  411  ;  II  Comp.  Dec.,  407. 

2  It  has  not  been  thought  necessary  to  discuss  in  detail  the  more 
general  questions  which  come  before  the  Comptroller  for  decision, 
such  question  as  the  nature  of  the  contract  relation,  by  what  constituted, 
the  capacity  of  the  parties,  the  legality  of  the  object,  form,  and  other 
questions  which  come  up  in  entering  into  a  contract ;  or  questions  which 
have  to  do  with  the  construction,  execution  and  discharge,  together 
with  the  distinction  between  express  and  implied  contracts ;  the  effect 
of  certain  irregularities  such  as  mistake,  misrepresentation,  fraud, 
duress  and  undue  influence ;  the  effect  of  waiver,  rescission,  and  subse- 
quent agreement;  the  remedies  legal  and  equitable  for  failure  to  per- 
form a  contract ;  all  these  matters  involve  principles  of  law  which  now 
obtain  in  the  courts  and  which  the  Comptroller  feels  himself  bound  to 

7  81 


82          JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

Contracts  ordinarily  come  before  the  Comptroller  be- 
cause of  some  alleged  failure  to  carry  out  their  expressed 
or  implied  terms.  To  forestall  the  necessity  of  reference 
to  a  third  party,  many  contracts  provide  in  advance  for  a 
stipulated  amount  of  damage  to  be  paid  to  the  aggrieved 
party  in  case  of  failure  to  comply  with  any  of  the  terms. 
These  agreements  themselves  often  become  the  subject  of 
disagreement  and  call  for  judicial  consideration.  When 
that  occurs  the  reasonableness  of  the  agreement  will  usually 
be  called  in  question.  A  typical  case  of  this  kind  decided 
by  Comptroller  Tracewell  in  igoi3  involved  a  stipulation 
in  a  contract  for  flat-boats,  for  damages  to  the  amount  of 
one  dollar  per  day  for  delay  in  completing  the  order.  In 
addition,  in  case  of  extension  of  time,  cost  of  inspection 
was  to  be  deducted  from  the  agreed  price.  The  time  of 
delivery  was  twice  extended  for  three  months,  each  time 
without  remission  of  costs.  When  the  contract  finally  ex- 
pired by  time  limitation  only  a  small  portion  of  the  boats 
had  been  completed.  Subsequently  the  remaining  boats 
were  completed  and  accepted  subject  to  the  conditions  of 
the  contract.  Had  the  stipulated  damages  been  rigidly  en- 
forced, the  contractor  would  have  received  about  sixteen 
dollars  for  each  boat  instead  of  three  hundred  nineteen 
dollars  as  agreed.  Instead  of  following  those  courts  which 
enforce  rigidly  the  intention  of  the  parties,  the  Comptroller 
chose  rather  to  consider  the  matter  on  equitable  grounds, 
and  finding  that  no  actual  damage  had  been  suffered,  di- 
rected that  no  reduction  be  made.4 

follow.  The  absence  of  detailed  discussion  in  no  sense  indicates  a 
failure  to  recognize  the  importance  of  the  Comptroller's  judicial  work 
in  this  field. 

8  VIII  Comp.  Dec.,  133. 

*  Those  courts  which  incline  to  the  equitable  interpretation  followed 
by  the  Comptroller  have  tried  to  reconcile  it  with  the  intention  of  the 


INTERPRETATION  OF  CONTRACTS  83 

Two  months  after  this  decision  had  been  rendered,  an- 
other case  arose  on  a  contract  providing  for  liquidated 
damages  of  one  hundred  dollars  per  day  for  delay  in  com- 
pleting a  steel  frame  for  a  government  printing  office  build- 
ing.5 The  contract  provided  specifically  that  time  should 
be  an  essential  feature  and  that  the  sum  stipulated  repre- 
sented the  damages  which  the  United  States  would  suffer, 
and  not  a  penalty.  There  was  a  delay  of  194  days  and  the 
Comptroller  held  that  the  damages  stipulated  were  not  un- 
reasonable. Since  the  subject  seemed  to  have  been  care- 
fully considered  by  the  parties,  and  the  language  was  so 
explicit  as  to  leave  no  room  for  misunderstandings,  he  de- 
cided that  the  agreement  should  be  enforced.8 

parties.  The  rule  adopted  is  that  where  the  parties  undertake  to 
measure  damages  which  are  difficult  of  ascertainment  they  are  acting 
strictly  within  their  rights  and  it  is  the  duty  of  the  courts  to  enforce 
their  agreement  (Nielson  v.  Read,  12  Fed.  Rep.,  441)  ;  but  where  the 
amount  of  damages  is  easily  ascertainable,  and  especally  where  the 
amount  stated  is  exorbitant  or  unreasonable  the  provision  has  been 
construed  as  a  penalty  (Davis  et  al.  v.  U.  S.,  17  Ct.  Cls.,  215).  Such 
action  is  sometimes  upheld  on  legal  grounds  by  the  fiction  that  the 
parties  have  not  understood  the  force  of  the  words  they  were  using,  or 
that  they  have  used  the  wrong  word,  since  they  cannot  make  that 
liquidated  damages  which  is  in  its  very  nature  a  penalty.  On  this  point 
it  was  the  opinion  of  the  Comptroller  that  the  prevailing  tendency  was 
toward  an  equitable  construction.  In  reaching  this  conclusion  he  em- 
phasized the  familiar  principle  that  the  words  of  an  agreement  are  taken 
most  strongly  against  the  person  who  prepared  it  as  compared  with  the 
person  who  merely  signs  it  (Davis  et  al.  v.  U.  S.,  17  Ct.  Cls.,  215). 

5  VIII  Comp.  Doc.,  238. 

8  Two  other  lines  of  contracts  upon  which  the  Comptroller  has  occa- 
sion to  pass  are  those  for  transportation  and  for  fiscal  services  in 
connection  with  government  disbursements.  Agreements  with  trans- 
portation companies  though  large  in  volume,  are  principally  of  legal 
importance  when  they  concern  the  relation  of  the  Government  with 
land  grant  or  bond  aided  railroads.  Such  contracts  usually  rest  on  an 
act  of  Congress  and  differ  from  other  contracts  in  raising  all  the  general 
question  of  legislative  interpretation.  Fiscal  arrangements  sometimes 


84         JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

In  addition  to  contracts  to  which  the  government  is 
directly  a  party,  the  Comptroller  exercises  jurisdiction  over 
certain  of  those  entered  into  with  Indians.  Contracts  with 
Indians  not  citizens  of  the  United  States  are  subject  to 
specific  statutory  limitations  among  which  are,  that  they 
must  be  executed  before  a  court  of  record  and  bear  the 
approval  of  the  Secretary  of  the  Interior  and  the  Commis- 
sioner of  Indian  Affairs  whenever  they  are  made  for  cer- 
tain enumerated  purposes.7  The  object  of  these  provisions 
is  obviously  to  protect  the  Indians  from  exploitation.  As 
illustrative  of  the  legal  problems  involved  in  an  effort  to 
realize  this  object  may  be  cited  a  case  which  came  before 
the  Comptroller  in  1900.* 

The  six  nations  of  New  York  entered  into  a  contract 
with  attorneys  by  which  the  latter  undertook  to  prosecute 
against  the  United  States  certain  treaty  claims  shared  by 
these  Indians  with  other  tribes  of  New  York  and  Wiscon- 
sin. The  contract  was  duly  approved,  judgment  secured 
and  appropriation  made  to  cover  the  amount.  Taken  by 
itself  the  contract  entitled  the  attorneys  to  the  stipulated 
fee  of  ten  per  cent.  In  connection  with  the  claim  were 
presented  other  agreements  which  called  for  twelve  and 
one  half  per  cent,  on  the  total  amount  of  the  judgment. 
These  included  contracts  not  only  with  the  six  nations,  but 
with  the  Oneidas  and  Stockbridges  to  which  latter  two, 
the  approval  of  the  Secretary  and  Commissioner,  having 
been  given  after  expiration,  appeared  to  be  non-operative. 
On  the  other  hand,  it  was  shown  that  the  Oneidas  and  a 
portion  at  least  of  the  Stockbridges,  were  citizens  of  the 

require    interpretation    to    determine   under   what   circumstances    claims 
for  exchange  are  allowable   (VI  Comp.  Dec.,  431,  638). 

7  Rev.  St.,  sec.  2103. 

8  VI  Comp.  Dec.,  849. 


INTERPRETATION  OF  CONTRACTS  85 

United  States  at  the  time  the  agreements  were  made;  as 
had  already  been  held,  the  provision  for  approval  applied 
only  to  Indians  not  citizens.8 

While  the  agreements  with  the  Oneidas  and  Stockbridges 
provided  for  an  attorney's  fee  of  fifteen  per  cent.,  there 
were  accompanying  all  the  contracts  two  assignments,  the 
latter  of  which,  bearing  date  February  16,  1900,  provided 
for  a  distribution  of  fees  upon  a  uniform  basis  of  twelve 
and  one  half  per  cent,  of  the  judgment  plus  interest. 

The  Auditor  had  decided  that  certification  by  the  Secre- 
tary and  Commissioner  precluded  further  examination  of 
the  case ;  the  Comptroller,  however,  went  behind  this  certifi- 
cation and  considered  the  various  contracts  on  their  merits. 
He  held  first,  that  agreements  in  order  to  justify  certifica- 
tion, must  have  been  in  strict  accordance  with  the  pro- 
visions of  statute,  and  that  the  equity  of  the  claim,  or  the 
length,  or  value  of  the  service  as  measured  by  results,  could 
not  be  considered.10  Furthermore  all  the  agreements  ex- 
cept the  one  with  the  New  York  Indians,  he  held  were 
about  matters  provided  for  by  statute.  To  the  question 
whether  or  not  the  Oneidas  and  Stockbridges  were  citizens 
of  the  United  States,  no  allusion  was  made ;  but  it  was  held 
that,  in  the  first  place,  the  contracts  with  them  had  no  legal 
existence  at  the  time  they  were  approved  by  the  Secretary 
and  the  Commissioner,  and  that,  in  the  second  place,  even 
if  they  had,  they  could  not  bind  the  judgment  creditors  of 
the  New  York  Indians,  but  would  justify  only  the  dis- 
tribution of  twelve  and  one  half  per  cent,  of  such  parts  of 
the  judgment  as  might  finally  be  allotted  to  the  two  tribes 
concerned. 

A  contract  of  April  13,  1895,  with  the  New  York  Indians 

"I  Comp.  Dec.,  176. 
10 1 8  Op.  A.  G.,  497- 


86          JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

provided  for  the  assignment  of  twelve  and  one  half  per 
cent,  of  any  judgment  which  might  be  rendered  in  favor  of 
the  Indians,  the  same  to  serve  as  reimbursement  to  the 
assignees,  for.  moneys  paid  by  them  to  other  persons  claim- 
ing formerly  to  have  been  attorneys  to  the  Indians.  These 
earlier  claims  had  already  been  rejected,  so  that  the  con- 
tract of  April  13,  1895,  besides  being  found  not  to  conform 
to  the  provisions  of  law,11  was  held  to  be  based  not  only 
on  a  past,  but  on  an  illegal  consideration.  It  was  an  attempt 
by  indirection,  to  cause  a  government  officer  to  pay  fees  on 
contracts  which  Congress  had  declared  were  to  be  held  void 
and  which  prohibited  any  officer  of  the  government  from 
paying  them  in  whole  or  in  part.12 

Upon  the  implication  of  the  Auditor  that  the  action  of 
the  Secretary  of  the  Interior  and  the  Commissioner  of  In- 
dian Affairs  should  be  considered  final  upon  the  accounting 
officers,  the  Comptroller  observed  that  the  action  of  the 
Interior  Department  relative  to  Indian  contracts  was  to  be 
considered  final  only  in  matters  submitted  by  law  to  its  dis- 
cretion. 

The  Secretary  of  the  Interior,  he  continued,  is  not  author- 
ized to  waive  any  of  the  statutory  requisites  relative  to  these 
contracts.  He  cannot  say  that  a  contract  concerning  matters 
not  embraced  in  section  2103  are  matters  therein  embraced. 
He  cannot  make  legal  by  his  approval  a  thing  declared  by 
Congress  to  be  illegal. 

The  approval  of  the  Interior  Department  indorsed  upon  these 
contracts  for  attorney's  fees  made  under  section  2103,  Re- 
vised Statutes  does  not  cure  the  omission  therefrom  of  any  of 

u  Rev.  St.,  3477,  provides  that  all  assignments  unless  made  in  the 
presence  of  two  witnesses  after  issue  of  warrant  for  payment,  and 
sworn  to  before  a  notary,  shall  be  null  and  void. 

12  18  U.  S.  St.,  35. 


INTERPRETATION  OF  CONTRACTS  8/ 

the  statutory  prerequisites  upon  which  their  validity  depends. 
Such  approvals  are  conclusive  and  binding  only  as  to  the  truth 
of  the  affirmative  facts  therein  recited.  Fraud  in  the  procure- 
ment of  such  contracts  and  patent  mistakes  of  fact  recited 
therein,  however,  are  subject  to  review. 

Upon  the  basis  of  these  facts  and  the  accompanying  line 
of  argument,  all  the  contracts  except  the  first  one  with  the 
New  York  Indians  were  held  to  be  inoperative.  Upon  this 
one,  the  Auditor  was  authorized  to  certify  for  payment,  the 
ten  per  cent,  fee  as  stipulated. 

From  the  foregoing  cases  it  appears  obvious  that  in  the 
interpretation  both  of  contracts  to  which  the  government 
is  a  party  and  of  those  over  which  it  has  acquired  a  statu- 
tory jurisdiction  the  Comptroller's  duties  call  into  play 
judicial  activity  of  a  high  order.  Here  even  to  a  greater 
extent  than  elsewhere  he  is  met  with  a  body  of  more  or 
less  conflicting  opinions,  state  and  federal.  In  harmonizing 
decisions  and  formulating  them  into  rules,  which,  until  re- 
versed by  the  courts,  become  binding  precedents,  the  Comp- 
troller may  be  considered  to  make  law  as  truly  as  it  is 
made  by  any  except  the  highest  courts. 


PART  II 

COMPARISON  OF  THE  COMPTROLLER'S  WORK 

WITH  SIMILAR  FUNCTIONS  IN  FRANCE 

AND  GERMANY 


INTRODUCTION 

Since  the  several  divisions  of  the  Comptroller's  activity 
find  collectively  no  close  analogy  on  the  Continent,  a  com- 
parison of  his  work  with  similar  functions  in  France  and 
Germany  involves  a  study  of  the  institutions  by  which  in 
part  parallel  activities  are  performed.  These  institutions 
include  in  the  first  place  the  accounting  services  of  the 
active  administrations,  together  with  the  final  auditing 
bodies  known  as  courts  or  chambers  of  accounts,  and  sec- 
ondly the  courts  with  which  jurisdiction  over  claims  against 
the  state  is  lodged.  Many  special  services  absolutely  indis- 
pensable to  the  proper  functioning  of  the  machinery  of  one 
country  are  entirely  absent  in  another.  In  the  following 
chapters  therefore,  the  various  organs  of  the  institutions 
described  will  be  considered  rather  in  their  relation  to  each 
other  as  constituting  a  complete  whole  than  in  their  relation 
individually  to  any  specific  activity  of  the  Comptroller. 

According  to  American  notions  it  is  when  viewed  from 
the  standpoint  of  the  individual,  as  determining  the  rights 
of  private  claimants  against  the  government,  that  the  work 
of  the  Comptroller  assumes  a  distinctively  judicial  char- 
acter. From  this  point  of  view  such  a  jurisdiction  as  he 
exercises  is  practically  unknown  in  the  active  administra- 


INTRODUCTION  TO  PART  SECOND  89 

tions  of  Continental  states.  When  the  head  of  any  branch 
of  the  administrative  service,  or  in  some  cases  even  a  sub- 
ordinate officer,  settles  a  claim,  appeal  lies  only  to  the  court 
charged  with  hearing  such  claims.  The  essential  difference 
between  such  suits  and  controversies  between  individuals 
is  recognized  if  at  all  by  lodging  jurisdiction  over  them,  not 
with  the  civil  tribunals  but  with  the  administrative  courts. 

Aside,  however,  from  these  functions  which  the  Anglo 
Saxon  readily  recognizes  as  judicial,  that  branch  of  the 
Comptroller's  work  which  is  here  regarded  as  purely  ad- 
ministrative, involves  activities  which  to  the  Continental 
mind  are  essentially  judicial.  It  is  the  Comptroller's  duty 
to  direct  the  auditing  machinery  of  the  government  and  to 
exercise  a  final  check  upon  treasury  operations.  From  this 
point  of  view  he  performs  the  function  known  in  France 
as  the  control  of  the  execution  of  the  budget  (controle 
de  I' execution  du  budget)*  Budgetary  control  culmi- 
nates in  nearly  every  country  on  the  Continent  in  a  formal 
and  systematic  auditing  by  a  body  variously  organized  from 
country  to  country,  but  everywhere  recognized  as  one  of 
the  judicial  organs  of  the  administration.  The  members 
of  this  body,  whether  it  be  known  as  a  Court  of  Accounts 
as  in  France  or  as  a  Chamber  of  Accounts  as  in  Prussia, 
usually  stand  on  a  level  officially  with  the  higher  judicial 
officers. 

Comparison  for  France  and  Germany  with  that  part  of 
the  Comptroller's  work  which  has  to  do  with  treasury 
regulation,  or  budgetary  control,  involves  a  study  of  the 

1  The  French  word  "  controle  "  as  used  in  this  phrase  has  a  signifi- 
cance in  addition  to  that  of  the  word  "  control "  somewhat  the  same 
as  that  of  our  word  "  check."  For  the  sake  of  definite  reference  the 
word  control  will  usually  be  employed,  but  it  should  be  borne  in  mind 
that  control  in  this  sense  can  be  exercised  subsequently  as  well  as 
previously  to  the  operation  controlled,  in  which  case  it  signifies  a  check 
upon  operations  already  completed. 


9<D          JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

relation  existing  between  the  active  budgetary  administra- 
tion and  special  tribunals  of  accounts.  From  the  other 
or  more  distinctively  judicial  side,  comparison  will  have 
to  do  in  the  first  place  with  the  relation  of  the  whole  finance 
administration  to  the  courts,  whether  administrative  or  civil. 
Finally,  concerning  the  disposition  of  claims  appealed  from 
decisions  of  administrative  officers,  a  comparative  study 
will  raise  the  whole  question  of  jurisdiction  between  the  ad- 
ministrative tribunals  and  the  civil  courts. 

Merely  to  mention  these  questions  covering  nearly  the 
whole  field  of.  jurisprudence  and  finance  administration, 
shows  the  difficulty  of  close  comparison.  An  exhaustive  dis- 
cussion of  the  questions  raised  is  obviously  beyond  the  scope 
of  this  study.  It  would  not,  however,  be  warranted  in 
studying  comparatively  any  single  branch  of  government 
functions, ;  to  seek  in  technical  organization  alone,  an  ex- 
planation of  differences  in  practical  operation.  Tempera- 
ment of  peoples,  contrasts  in  systems  of  law  and  govern- 
ment, the  way  in  which  legislators  and  the  people  whom 
they  represent  are  in  the  habit  of  regarding  executive 
officers,  history  and  traditions  of  institutions,  all  the  condi- 
tions in  short,  which  make  one  state  different  from  another, 
come  in  to  influence  the  working  of  every  part  of  govern- 
mental machinery. 

While  it  is  not  necessary  to  dwell  at  length  upon  such 
general  differences,  mere  reference  to  them  makes  clear 
that  a  study  of  this  kind  cannot  seek  exact  parallels.  Every 
part  of  the  regulative  machinery  possesses  its  significance, 
not  so  much  in  comparison  with  other  machinery,  as  from 
its  place  in  the  complete  system.  The  object  here  sought 
will  be  to  ascertain  by  what  methods  and  in  how  far,  similar 
ends  are  attained  under  completely  different  systems  of  law. 


CHAPTER   VII 

THE  REGULATION  OF  TREASURY  OPERATIONS  IN   FRANCE  AND 

GERMANY 

As  chief  of  the  disbursing  system,  the  Comptoller  exer- 
cises in  our  government  the  function  known  on  the  Con- 
tinent as  budgetary  control.  The  Continental  control  sys- 
tems are  all  modelled  in  large  measure  after  the  system  of 
France  where  there  is  no  single  office  in  which  the  Comp- 
troller's functions  are  effectively  centralized.  The  whole 
control  system  comprises  what  is  known  as  administrative 
control,  that  exercised  in  the  various  ministries,  including 
the  Ministry  of  Finance,  judicial  control,  exercised  by  the 
Court  of  Accounts  (cour  des  comptes)  and  the  legislative 
control  of  the  Chambers. 

By  legislative  control  is  not  meant  the  control  over  the 
finances  which  the  Chambers  exercise  in  voting  the  budget 
law,  but  rather  a  control  or  check  exercised  after  the  oper- 
ations of  the  budget  year  have  been  completed,  and  which 
consists  in  approving  these  operations,  practically  in  the 
form  of  a  bill  of  indemnity  to  the  ministers  (hi  de  regle- 
ment  du  budget).  This  bill  cannot  be  taken  up  im- 
mediately at  the  close  of  the  year,  as  under  the  French 
system  the  operations  of  the  budget  year  are  not  completed 
until  some  time  after  the  year  is  ended;1  in  theory,  how- 

1  Under  this  system  of  taking  account  of  the  actual  operations  of  the 
Treasury  during  the  year,  there  is  credited  to  the  year  all  the  income 
arising  from  laws  in  force  during  the  year,  and  charged  to  it  all  ex- 
penditures made  on  account  of  appropriations  for  the  year,  whether 
or  not  the  money  comes  into  the  treasury,  or  the  accounts  are  settled 

91 


92  JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

ever,  it  should  be  introduced  at  the  beginning  of  the  session 
next  succeeding  the  close  of  the  budget  period  (exer- 
cice),  before  the  introduction  of  the  budget  law  for  the 
next  year.2  As  a  matter  of  fact  the  indemnity  laws  are 
passed  years  after  the  operations  under  the  budget  have 
been  completed,  with  the  result  that  the  action  becomes 
largely  perfunctory.8 

and  paid.  This  is  known  as  the  "  exercice  financier  "  as  compared  with 
the  English  system  of  recording  actual  receipts  and  expenditures  which 
in  French  finance  is  called  "  gestion  annuelle." 

2  Law  of  May  15,  1818,  article  102. 

3  It  is  not  improbable  that  the  framers  of  that  section  of  our  consti- 
tution which  provides  that  regular  statement  and  account  of  the  receipts 
of  all  public  moneys  and  expenditures  shall  be  published  from  time  to 
time   (Art.  I,  sec.  9,  cl.  7),  contemplated  some  formal  auditing  of  ac- 
counts by   Congress.      The   reports   of   the   Secretary   of   the   Treasury 
which  were  deemed  to  fulfill  the  requirements  of  this  section,  so  far 
as  it  plays  a  part  in  budgetary  legislation,  is  the  basis  of  future  esti- 
mates and  not  the  subject  of  a  Congressional  audit. 

With  our  lack  of  budgetary  unity  anything  parallel  to  the  French 
"  loi  de  reglement  "  would  be  impossible.  This  does  not  mean  that  the 
accounts  are  never  subjected  to  Congressional  scrutiny.  There  have 
been  committees  on  public  expenditure  since  1814.  In  that  year  the 
House  provided  for  a  standing  committee  on  public  expenditure  whose 
functions  were  specifically  outlined  (House  Jour.,  v.  9,  pp.  311,  314. 
Quoted  in  Adams,  E.  D.,  Control  of  the  Purse  in  the  United  States 
Government,  p.  218).  The  duties  of  this  committee  were  later  divided 
among  several  committees  and  at  present  there  are  standing  committees 
on  the  expendture  of  each  of  the  several  departments  and  on  expendi- 
tures on  public  buildings.  The  duties  of  these  committees  as  outlined 
in  the  rules  of  the  house  are,  "  the  examination  of  the  accounts  and 
expenditures  of  the  several  Departments  of  the  Government  and  the 
manner  of  keeping  the  same;  the  economy,  justness,  and  correctness  of 
such  expenditures ;  their  conformity  with  appropriation  laws ;  the  proper 
application  of  public  moneys ;  the  security  of  the  Government  against 
unjust  and  extravagant  demands ;  retrenchment ;  the  enforcement  of 
the  payment  of  moneys  due  to  the  United  States ;  the  economy  and 
accountability  of  public  officers ;  the  abolishment  of  useless  offices ;  the 
reduction  or  increase  of  the  pay  of  officers."  (See  McConachie,  L.  G., 
Congressional  Committees,  New  York  and  Boston,  1898,  Appendix  VI, 


REGULATION  OF  TREASURY  OPERATIONS        93 

Although  the  classification  of  the  organs  of  control  into 
administrative,  judicial  and  legislative  is  perhaps  the  most 
obvious,  and  the  most  convenient  for  purposes  of  study,  a 
more  significant  division  would  come  from  differentiating 
the  control  exercised  upon  the  officers  who  authorize  ex- 
penditures (controle  des  ordonnateurs)  from  that  exercised 
over  accounting  officers  (controle  des  comptables).  As  will 
be  apparent  both  in  studying  the  administrative  regulations 
and  the  work  of  the  Court  of  Accounts,  the  real  character 
of  the  French  system  is  determined  by  considering  it  from 
these  two  points  of  view.* 

The  lack  of  effective  centralized  regulation  of  public 
expenditures  in  France  applies  not  so  much  to  the  actual 
disbursement  of  moneys  as  to  the  contracting  of  expendi- 
tures. The  actual  accounting  is  sufficiently  well  centralized 

p.  398.)  Work  similar  to  that  alloted  to  these  several  committees  is 
assigned  in  the  Senate  to  the  committee  on  organization,  conduct  and 
expenditures  of  the  executive  departments. 

The  work  of  these  several  committees  has  not  been  to  make  formal 
audit  of  accounts  or  expenditures  under  the  appropriations  of  each 
separate  year,  but  rather  to  keep  a  general  outlook  for  irregularities  and 
for  tendencies  toward  unwarranted  expenditure.  In  the  regular  course 
of  their  duties  they  have  not  usually  been  in  a  high  degree  efficient  in 
performing  this  work.  Misapplications  of  funds  have  usually  been 
revealed  through  the  efforts  of  the  executive  departments  themselves, 
or  else  through  special  Congressional  investigations.  (For  a  discussion 
of  the  work  of  standing  committees  on  expenditures  cf.  Wilson,  Wood- 
row,  Congressional  Government,  Boston,  1885,  pp.  175  ff.) 

4  Exposition  of  the  French  control  system  may  be  found  in  detail  in 
Besson,  Le  Controle  des  Budgets  en  France  et  a  I'etranger,  and  in 
articles  on  "Controle"  and  "  Cour  des  Comptes"  in  Say's  Dictionnaire 
des  Finances. 

Ine  most  exhaustive  discussion  of  this  subject  is  contained  in  an 
unpublished  monograph  entitled  Controle  de  I'execution  des  Budgets  en 
France  et  a  I'etranger,  by  M.  Victor  Marce,  conseiller  referendaire  a  la 
cour  des  comptes.  This  work  was  awarded  the  grand  prize  by  the 
Academy  of  Moral  and  Political  Science,  Paris,  1900. 


94  JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

in  the  division  of  public  accounts  in  the  Ministry  of  Fi- 
nance (direction  generate  de  la  comptabilite  publique)  and 
payment  cannot  be  made  upon  any  warrant  without  the 
countersignature  of  the  Director  of  the  general  movement 
of  funds  (direct eur  du  movement  general  des  fonds), 
who  ascertains  whether  the  proposed  expenditure  is  pro- 
vided for  in  the  budget  or  by  additional  credits,  and  whether 
funds  are  still  available  to  meet  it.  Accounts  are  also 
carefully  revised  by  the  Court  of  Accounts,  accountants 
being  held  pecuniarily  liable  for  any  discrepancies.  None 
of  these  precautions,  however,  prevent  the  ministers  or 
their  delegates  from  contracting  for  expenditure  far  in  ex- 
cess of  the  credits  voted  in  the  budget.  This  they  often  do 
in  the  full  expectation  that  the  Chambers  will  vote  a  supple- 
mentary credit  to  make  up  the  deficiency. 

The  responsibility  for  this  practice  lies  largely  with  the 
budgetary  system  in  France  under  which  neither  the  original 
budget  nor  the  demand  for  supplementary  credits  are  gov- 
ernment measures  for  which  the  ministry  through  the 
Minister  of  Finance  stands  responsible.  The  Minister  of 
Finance  centralizes  the  demands  but  he  does  not  control 
them.5  Each  ministry  in  preparing  its  own  budget  groups 
its  demands  and  presents,  with  the  original  budget,  those 
which  have  the  greatest  chance  of  being  granted,  knowing 
full  well  that  the  credits  will  not  cover  the  expenditures 
contemplated.  Demands  which  would  be  the  most  subject 
to  attack,  when  the  Chamber  is  attempting  to  preserve  a 
balance  between  income  and  expenditure,  are  held  back  to 
be  presented  when,  with  a  less  critical  examination,  the 
reasons  for  the  expenditure  are  not  likely  to  stand  in  such 
glaring  opposition  to  arguments  for  budgetary  equilibrium.8 

5  Stourm,  Rene,  "  Le  Budget,"  Paris,  1891,  2e  ed.,  p.  62. 
*Ib.,p.  313. 


REGULATION  OF  TREASURY  OPERATIONS        95 

It  is  perhaps  natural  that  under  these  circumstances  the 
ministers  should  not  always  wait  for  the  credit  to  be  voted 
before  contracting  for  the  expenditure.  Oftentimes  the 
fact  that  an  obligation  actually  has  been  incurred,  furnishes 
the  strongest  possible  argument  for  meeting  it.7  Since  the 
refusal  of  the  state  to  pay  the  obligation  contracted  in  its 
name  by  its  authorized  agents  would  amount  to  repudiation, 
it  is  scarcely  practicable  to  hold  the  ministers  pecuniarily 
responsible.8  Students  of  budgetary  science  have  long 
recognized  in  this  method  of  making  expenditures,  a  weak- 
ness of  the  French  system.  In  nearly  every  session,  some 
measure  containing  remedial  provisions  is  introduced  in 
the  Chambers  and  many  such  measures  have  become  law. 
Thus  far,  however,  the  practical  situation  has  not  been 
materially  changed. 

In  the  formal  regulation  of  disbursements  great  progress 
has  been  made.  Prior  to  the  period  of  the  Third  Republic 
regular  provision  was  made  for  meeting  payments  in  excess 

7  A  case  in  point  occurred  in  the  Ministry  of  Marine  in  1886.  The 
minister  decided  by  a  simple  order  that  the  age  for  pensioning  the  civil 
officers  of  his  department  should  be  lowered  three  years.  This  order 
was  censured  by  the  legislature  at  its  next  session,  but  remained  in  force 
until  the  minister  retired  from  office  in  July,  1887,  thus  resulting  in  an 
overdrawing  of  credits  to  the  amount  of  nearly  550,000  francs.  A  new 
minister  who  was  entirely  without  responsibility  for  the  condition  his 
predecessor  had  brought  about,  then  came  into  power,  and  the  Chambers 
were  practically  left  no  choice  but  to  vote  the  amount  necessary  to 
make  up  the  deficiency  (Stourm,  "  Le  Budget,"  2"  ed.,  p.  571). 

"Under  the  law  of  May  15,  1850,  this  is  legally  possible.  In  cases 
where  the  surpassing  of  credits  has  been  most  flagrant,  proposals  have 
been  entertained  in  the  Chamber  to  put  this  law  into  practical  opera- 
tion. This  was  notably  the  case  in  1887  when,  without  the  excuse  of 
any  particular  emergency  or  even  necessity,  the  Minister  of  Marine 
exceeded  his  credits  by  8,240,000  francs.  A  majority,  however,  was 
received  for  the  supplementary  credit  (Session  of  Nov.  5,  1887,  cited 
by  Stourm,  2e  ed..  p.  477). 


96  JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

of  appropriations  by  transferring  to  a  chapter  where  there 
was  a  deficiency  the  surplus  from  chapters  where  a  more 
liberal  allowance  had  been  voted  (mrements).  This  free- 
dom was  natural  at  a  time  when  the  part  of  the  legislature 
in  government  was  much  more  restricted  than  at  present,  but 
long  after  this  practice  was  legally  prohibited,9  payments 
were  frequently  made  by  means  of  urgency  warrants  in  the 
total  absence  of  appropriations. 

In  general,  actual  payments  are  now  held  strictly  within 
the  limits  of  regularly  voted  credits,  but  all  efforts  to  hold 
the  contracting  of  expenditures  within  the  same  limits,  have 
run  counter  to  the  feeling  of  independence,  which  is  thor- 
oughly imbedded  in  each  ministry.  The  Ministry  of  In- 
terior, which  has  been  the  worst  offender  usually  carries 
with  it  the  Premiership  and  is  able  to  present  strong  polit- 
ical reasons  for  opposing  a  more  complete  control.  No 

9  Law  of  Sept.  16,  1871,  art.  30.  In  1882,  upon  occasion  of  an  expedi- 
tion to  Tunis,  the  appropriations  in  several  chapters  of  the  budget  were 
exceeded  in  this  way  to  the  total  amount  of  nearly  six  million  francs. 
This  extraordinary  supplementary  credit  was  denied  by  the  Chambers 
and  the  affair  was  never  regularized  until  June  17,  1890,  when  the  law 
of  indemnity  (hi  de  r&glement)  for  the  budget  year  (exercice~)  1882 
was  passed. 

Stourm  has  called  attention  to  the  fact  that  up  to  1891  the  financial 
system  in  vogue  in  the  colonies  was  peculiarly  favorable  to  the  over- 
running of  credits.  Before  the  ordinances  of  delegation  arrived,  the 
Governors  were  in  the  habit  of  opening  credits  of  their  own  accord,  to 
the  officers  to  whom  the  power  of  authorizing  disbursements  was  to  be 
delegated  (ordonnateurs  secondaires}.  Payments  were  thus  made  with- 
out any  knowledge  of  the  amount  of  available  appropriations.  The 
decree  of  May  16,  1891,  which  aimed  to  apply  to  the  colonies  the  same 
rules  of  budgetary  practice  as  were  in  force  in  France,  still  left  possible 
the  continuance  of  the  old  practice  for  a  time  at  the  end  of  each  budget 
period  and  it  was  not  definitely  specified  what  the  limits  of  this  time 
should  be  (Stourm,  2e  ed.,  p.  477,  note  2). 


REGULATION  OF  TREASURY  OPERATIONS        97 

provision  involving  fiscal  subordination  to  the  Minister  of 
Finance  is  likely  to  be  effectively  executed.10 

While  the  absence  from  the  French  system  of  an  officer 
like  the  American  Comptroller  doubtless  impairs  somewhat 
legislative  control  over  the  incurring  of  expenditures,  it  is 
from  the  reverse  side  that  comparison  between  the  two 
systems  is  especially  significant.  The  real  power  for  effec- 
tive regulation  which  our  Comptroller  exercises,  arises  to 
a  very  large  extent  from  the  thoroughness  and  minuteness 
with  which  Congress  makes  effective  its  power  to  direct 
public  expenditures.  This  fact  universally  understood  and 
accepted  gives  to  the  officer  upon  whom  is  devolved  the 
interpretation  and  application  of  the  will  of  Congress,  a 

"Since  1891  (law  of  Dec.  26,  1890,  sec.  59;  Bulletin  des  lois,  p. 
1714)  there  has  been  in  each  of  the  several  ministries,  an  officer  whose 
nominal  duty  it  is  to  regulate  the  incurring  of  obligations  for  his  min- 
istry (controlleur  des  defenses  engagees).  This  officer,  in  theory  at 
least,  is  supposed  to  act  more  or  less  independently  of  the  head  of  the 
department,  and  the  later  legislation  has  aimed  to  bring  him  more  under 
the  jurisdiction  of  the  Ministry  of  Finance.  As  at  first  enacted  the  law 
provided  simply  for  monthly  reports  regarding  obligations  undertaken, 
to  the  Bureau  of  Public  Accounts  (direction  de  la  comptabilite  pub- 
lique),  but  by  the  latest  amendment  which  makes  the  concurrence 
of  the  Finance  Minister  necessary  for  the  appointment  of  the  Controller, 
all  his  findings  (avis)  have  to  be  made  in  duplicate  and  addressed  as 
well  to  the  Finance  Minister  as  to  the  head  of  the  particular  depart- 
ment. Besides,  it  is  provided  that  prior  to  every  demand  for  special 
credits,  the  statement  of  balances,  after  deducting  payments  to  be  made 
from  credits  granted,  must  receive  the  Controller's  verification  (Budget 
law  of  March  31,  1903,  sec.  53). 

It  is  to  be  noted  that  the  power  lodged  with  this  officer  is  practically 
limited  to  giving  information  and  establishing  the  accuracy  of  statements. 
He  is  still  a  part  of  the  ministry  whose  accounts  come  before  him,  and 
as  such  is  dependent  upon  the  head  of  the  department.  The  officers 
of  the  Treasury  in  Paris  are  not  at  present  especially  hopeful  that  the 
recent  changes  will  work  any  considerable  reform.  (For  discussion  on 
this  subject  cf.  Boucard  et  Jeze,  Elements  de  la  Science  des  Finances, 
Paris,  1896,  pp.  54  ff.) 
8 


98  JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

power  which  under  other  circumstances  he  could  hardly  be 
expected  to  possess. 

The  basis  of  the  French  system  of  regulating  expendi- 
tures was  established  under  a  government  whose  executive 
exercised  a  large  degree  of  arbitrary  power.  Many  of  the 
organs  of  the  system,  and  indeed  its  essential  character  are 
the  same  now  as  under  earlier  regimes.  The  many  far- 
reaching  reforms  have  aimed  to  improve  the  operation  of 
the  system  rather  than  to  change  its  general  characteristics. 
In  view  of  French  administrative  history  it  is  not  surprising 
that  control  over  the  expenditures  of  higher  executive 
officers  should  not  be  exercised  with  a  minuteness  of  de- 
tail, which  Americans  regard  as  necessary  for  safe-guarding 
the  interests  of  the  treasury. 

Those  officers  who  keep  the  public  accounts  and  are 
charged  with  the  actual  handling  of  public  funds,  are  sur- 
rounded by  all  the  checks  which  an  elaborate  system  can 
provide.  Accounts  for  all  receipts11  are  centralized  in  the 

11  The  fact  that  the  work  of  the  Treasury  in  France  includes  not  only 
operations  analogous  to  those  of  our  Federal  Government,  but  to  those 
of  the  state  governments  as  well,  and  regulates,  besides  expenditures, 
receipts  from  a  great  variety  of  forms  of  taxation,  serves  to  give  the 
machinery  an  appearance  of  great  complexity.  The  same  organs  are 
usually  employed  for  regulating  receipts  and  disbursements,  especially 
in  the  departments  and  communes.  Receipts  from  direct  taxes  are 
controlled  simply  by  holding  the  general  treasurer  and  paymaster  of 
each  department  (tresorier-payeur  general)  responsible  for  the  whole 
amount  assessed  to  his  department.  He  in  turn  holds  the  receivers 
(receveurs  particuliers}  responsible  for  the  amount  due  from  their 
arrondissements  and  they  likewise  the  collectors  (percepteurs).  When 
it  is  impossible  to  recover  the  full  amount  assessed,  the  collecting 
officers  obtain  indemnity  by  means  of  process  before  the  prefectural 
councils. 

The  collecting  of  indirect  taxes  is  controlled  by  three  administrations, 
that  of  the  indirect  taxes  proper  (regie  des  contributions  indirectes), 
that  of  customs  duties  (regie  des  douanes},  and  that  of  registry  and 
stamp  taxes  and  receipts  from  public  property  (regie  de  I'enregistre- 


REGULATION  OF  TREASURY  OPERATIONS        99 

books  of  the  treasury  at  Paris,  the  actual  specie  being  dis- 
tributed according  to  the  needs  for  payment  upon  order  of 
the  Director  of  the  general  movement  of  funds.  Payments 
are  actually  made  from  the  office  of  the  central  paying 
cashier  (caissier  payeur  central  du  Tresor),  by  the  general 
treasurers  and  paymasters  (tresoriers  payeurs  generaux) 
and  their  subordinates  in  the  departments,  and  by  the  receiv- 
ers (receveurs  particuliers) ,  and  collectors  (precepteurs). 
These  officers,  who  are  at  the  same  time  the  collectors  of 
direct  taxes,  constitute  the  responsible  disbursers  of  the 
public  funds  (comptables  du  Tresor). 

As,  however,  expenditure  of  revenues  is  not  entirely  an 
affair  of  the  Ministry  of  Finance,  it  is  not  alone  the  dis- 
bursing officers  proper  who  are  held  responsible  for  the 
correctness  of  theirs  balances.  Each  of  the  several  min- 
istries in  whose  interests  disbursements  are  made,  have 
their  own  regulations  for  checking  and  auditing,  and 
although  the  general  bureau  of  public  accounts  (direction 
generate  de  la  comptabilite  publique)  in  the  Ministry  of 
Finance  is  charged  with  the  duty  of  unifying  the  methods 
of  accounting,  there  is  to  be  found  in  the  several  ministries 
considerable  variety  of  system. 

In  all  the  ministries  there  is  either  a  single  bureau  of 
accounts,  whose  chief  checks  and  supervises  the  work  of 

ment  des  domaines  et  du  timbre').  Each  of  these  administrations  is 
supervised  by  a  Director,  who  has  under  him  inspectors  and  sub- 
inspectors  to  superintend  and  check  the  work  of  collectors.  Besides, 
there  are  controllers  of  receipts  either  at  Paris  (receveurs-controleurs) 
or  traveling  from  place  to  place  (controleurs-receveurs  ambulants), 
whose  special  duty  it  is  to  be  on  the  lookout  for  irregularities  and 
frauds.  The  administration  of  state  manufactures  has  also  its  inspec- 
tors and  inspecting  engineers  who  check,  not  only  the  operations  in 
cash,  but  in  materials  as  well.  The  accounts  of  these  various  services, 
as  also  those  of  the  posts  and  telegraphs,  are  examined  by  the  General 
Inspectors  of  Finance  (inspecteurs  generals  des  finances}. 


IOO        JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

subordinate  accountants  or,  as  for  a  long  time  in  the  Min- 
istry of  Public  Instruction,  the  accounts  are  adjusted  in 
several  bureaus  corresponding  to  different  divisions  of  the 
service.  In  the  Ministry  of  Foreign  Affairs  supervision 
is  exercised  by  the  bureau  for  the  direction  of  funds  and 
of  accounts  (direction  des  fonds  et  de  la  comptabilite). 
Under  the  superintendence  of  the  chief  of  this  bureau,  a 
special  accounting  agent  audits  the  accounts  for  the  diplo- 
matic and  consular  service  and  prepares  them  for  submis- 
sion to  the  Court  of  Accounts.  In  the  Ministry  of  War 
there  is  a  special  control  corps  resident  at  Paris,  which  in- 
spects at  irregular  intervals  accounts  of  the  various  services 
of  the  department  in  much  the  same  way  apparently  that 
general  financial  operations  are  inspected  by  the  general 
inspectors  of  finance.  In  the  services  of  the  Ministry  of 
the  Interior  are  centralized  the  accounts  of  the  departments 
and  communes  of  all  France. 

The  operations  of  the  different  services  in  so  far  as  they 
have  to  do  with  disbursements,  after  being  checked  and 
audited  at  the  ministry  from  which  they  emanate,  are  sub- 
jected to  the  control  of  the  Finance  Ministry.  This  con- 
trol is  exercised  through  the  agency  of  three  services,  called 
the  central  control  of  the  public  treasury  (controle  central 
du  tresor  public),  the  general  direction  of  public  accounts 
(direction  generate  de  la  comptabilite  publique),  and  the 
direction  of  the  general  movement  of  funds  (direction  du 
movement  general  des  fonds).  The  first  of  these  services 
has  jurisdiction  over  matters  of  fact  which  might  affect 
the  validity  of  accounts,12  the  second  regulates  matters  of 

12  All  claims  against  the  public  treasury  must  receive  the  vise  of  the 
controller  of  the  public  treasury.  He  is  required  through  his  deputies 
to  watch  all  balances  of  the  treasury  and  forestall  all  fraudulent  entries 
of  receipts  or  disbursements,  to  supervise  the  entries  regarding  the 


REGULATION    OF 


form,13  while  the  third  has  to  do  with  questions  of  budgetary 
regularity. 

From  a  fiscal  point  of  view  the  third  service  is  by  far 
the  most  important.  The  Director  of  the  general  move- 
ment of  funds  is  charged  with  holding  actual  disbursements 
within  the  limits  of  available  appropriations.  No  payment 
upon  any  warrant  can  be  made  without  the  director's 
countersignature.  He  shares  moreover  with  the  Central 
Control  Bureau  and  the  general  Director  of  public  ac- 
counts supervision  over  the  work  of  the  accounting  officers 
of  the  Treasury.  At  the  end  of  each  year,  he  prepares 
the  general  account  of  treasury  disbursements  which  is 
submitted  first  to  the  Commission  for  verifying  ministerial 
accounts,  and  later  to  the  Court  of  Accounts.14 

funded  debt,  and  in  general  to  vouch  for  the  authenticity  of  every 
account  as  to  the  essential  facts  which  constitute  a  claim  against  the 
treasury.  He  has  likewise  to  authenticate  the  daily  resume  which  the 
chiefs  of  the  various  services  submit  to  the  Bureau  of  Public  Accounts, 
and  to  the  direction  of  the  general  movement  of  funds  ;  he  himself  pre- 
pares a  statement  of  each  day's  operations,  to  be  submitted  to  the 
minister.  The  general  Director  of  public  accounts,  the  Director  of  the 
general  movement  of  funds  and  of  the  funded  debt,  are  required  to 
furnish  the  controller  information  regarding  any  decisions,  ordinances 
or  balances  which  he  may  require  for  the  proper  performance  of  his 
duties. 

13  The  work  of  the  general  direction  of  public  accounts  (direction 
generate  de  la  comptabilite  publique),  has  to  ascertain  if  all  rules 
regarding  public  accounts  have  been  observed,  and  prescribes  the  form 
in  which  accounts  shall  be  submitted.  It  receives  and  registers  all  the 
ordinances  emitted  by  the  several  ministries  and  all  resolutions 
(arretes),  and  decisions  applicable  to  public  accounting.  It  is  to  a 
certain  extent  the  record  bureau  of  the  department. 

"  Important  functions  are  likewise  performed  by  the  Director  of  the 
general  movement  of  funds  with  reference  to  the  public  debt  and  the 
emission  of  interest  bearing  loans.  He  exercises  also  a  certain  surveil- 
lance over  the  coining  of  money,  over  the  operations  of  the  stock  ex- 
change —  in  France  conducted  by  a  syndicate  with  a  governmental 
monopoly  (agents  de  change)  —  and  over  the  issuing  of  bonds  by 


1'Jf?        JUDICIAL  WOBK  OF  COMPTROLLER  OF  TREASURY 

It  is  of  course  to  be  borne  in  mind  in  connection  with 
the  work  of  the  Director  of  the  general  movements  of 
funds,  that  he  acts  entirely  as  the  subordinate  of  the  Min- 
ister of  Finance,  and  not  like  the  Comptroller  of  the 
Treasury  in  Washington,  in  an  independent  capacity.  The 
monthly  distribution  of  funds  to  the  different  services  of 
the  government,  although  considered  as  one  of  the  Direc- 
tor's important  control  functions,  takes  place  on  the  basis 
of  information  collected  in  the  name  of  the  Minister  of 
Finance,  and  the  distribution  itself  is  made  by  executive 
decree.15  Nevertheless  the  real  work  of  keeping  abreast 
of  operations  of  the  various  services,  and  of  imposing  an 
actual  check  upon  their  disbursements,  whether  by  holding 
them  within  the  monthly  allotments  or  within  the  limits  of 
total  appropriations,  is  performed  by  an  office  immediately 
under  the  Director's  superintendence  (comptabilite  des 
droits  constates).16 

The  only  other  preventive  check  upon  treasury  opera- 
tions, is  that  exercised  by  the  general  inspection  of  finance. 
This  service  divides  the  territory  of  France  into  ten  districts 
(cir conscriptions)  each  provided  with  a  corps  of  inspec- 
tors under  the  direction  of  an  Inspector  General.  Between 
the  first  of  May  and  the  fifteenth  of  November,  the  inspec- 
tors traverse  each  district  and  subject  all  accounts  of  the 
department  and  of  such  of  the  subordinate  services  as 

subsidized  railroads  and  those,  the  interest  on  whose  bonds  is  guaranteed 
by  the  state.  All  these  powers  make  him,  next  to  the  minister,  by 
far  the  most  important  officer  of  the  ministry  of  finance. 

"Art  61,  Decree  of  May  31,  1862. 

16  The  examinations  to  which  accounts  are  subjected  in  the  other 
bureaus  of  the  Treasury,  after  receiving  the  endorsement  of  the  Director 
of  the  general  movement  of  funds,  have  to  do  with  the  identity  of  the 
parties  and  matters  of  technical  accuracy  involving  no  important  admin- 
istrative questions. 


REGULATION  OF  TREASURY  OPERATIONS       1 03 

seems  necessary,  to  examination.     In  addition,  special  in- 
vestigations are  undertaken  as  occasion  demands.17 

After  treasury  operations  have  been  completed  the  re- 
view of  accounts  is  begun  by  the  Commission  for  verifying 
ministerial  accounts  (commission  pour  verification  des 
comptes  des  ministres)18  which  submits  an  official  report 

11  The  Inspector-General  serves  for  three  years  in  a  single  district, 
and  within  that  time  he  is  supposed  to  verify  and  check  as  far  as  pos- 
sible, the  work  of  all  the  services  within  his  territory.  After  each  in- 
vestigation, report  is  made  by  the  inspector  upon  an  authorized  form 
upon  which  space  is  reserved  for  reply  by  the  accountant  to  any  criticism 
of  the  Inspector  and  for  remarks  by  the  chief  of  the  service.  These 
various  elements  of  the  report  are  summed  up  by  the  Inspector-General 
in  a  final  column.  Finally  the  reports  for  each  inspection  district 
accompanied  by  a  general  report  by  the  Inspector-General,  containing 
a  resume  of  the  principle  facts  and  suggested  reforms,  are  forwarded 
to  the  Minister  of  Finance. 

There  would  seem  to  be  danger  that  a  service  of  this  kind  might 
become  in  large  measure  perfunctory.  French  budgetary  authorities, 
as  the  following  quotation  from  Stourm  indicates,  seem  to  feel  the 
service  is  peculiarly  efficacious : 

"  L'inspection  des  finances,  par  sa  position  superieure,  son  emanation 
directe  du  ministre  et  ses  apparitions  inopinees,  constitue  un  des  con- 
troles  les  plus  redoutes,  et  les  plus  efficaces  que  nous  ayons  encore 
rencontres.  fitrangere  aux  relations  et  aux  habitudes  locales,  elle 
represente  I'uniformite  de  la  regie  partant  du  centre  pour  faire  respecter, 
jusqu'  aux  extremites  de  la  France,  le  texte  de  la  loi,  sans  managements, 
ni  routine,  ni  defaillance.  Elle  concourt,  en  un  mot,  d'une  maniere 
preponderante,  a  maintenir  dans  sa  rectitude  et  sa  vitalite  notre  belle 
organisation  financiere  "  (Stourm,  2*  ed.,  p.  412). 

18  This  Commission  consists  of  nine  members  chosen  by  the  executive 
from  among  members  of  the  Senate,  of  the  Chamber  of  Deputies,  the 
Council  of  State  and  the  Court  of  Accounts.  The  final  account  of 
expenditures  which  each  ministry  is  required  to  submit  at  the  end  of 
the  year  (compte  definitif  des  defenses),  the  final  account  of  receipts 
(compte  definitif  des  recettes),  and  the  general  finance  account  (compte 
general  des  finances'),  submitted  by  the  Minister  of  Finance,  are 
examined  and  compared  with  the  books  of  the  Bureau  of  Public  Ac- 
counts in  the  Ministry  of  Finance,  and  with  the  records  kept  in  the 
several  ministries.  The  final  accounts  and  the  books  are  checked  not 


104        JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

to  the  Minister  of  Finance,  the  Senate  and  the  Chamber 
of  Deputies.  The  work  of  the  Commission  is  in  some 
measure  a  judicial  investigation.  The  final  detailed  judicial 
examination  devolves  upon  the  Court  of  Accounts,  a  body, 
characterized  not  only  by  its  name  but  by  its  organization 
and  the  ceremony  and  dignity  of  its  proceedings  as  a  judicial 
tribunal. 

The  court  was  founded  by  Napoleon  I  in  1807,  partly 
after  the  model  of  the  Chambers  of  Accounts  of  the  old 
Monarchy.19  Its  jurisdiction  extends  to  the  operations  of  all 

only  as  to  their  agreement,  but  as  to  the  intrinsic  regularity  of  all  the 
operations. 

19  The  internal  organization  of  the  court  has  undergone  only  com- 
paratively slight  modifications  since  that  time,  although  the  tenure  of 
its  members  and,  as  was  natural,  the  relation  of  the  court  to  the  execu- 
tive has  changed  somewhat  under  the  different  regimes. 

For  the  greater  part  of  its  work,  the  court  is  divided  into  three 
Chambers,  each  consisting  of  six  members  (conseillers  maitres),  pre- 
sided over  by  a  President.  There  is  besides  a  first  President  who 
presides  at  the  sessions  of  the  united  court,  and  assigns  the  members 
to  the  three  Chambers.  The  four  Presidents,  as  well  as  the  eighteen 
judges  (conseillers  maitres),  are  appointed  by  the  executive  upon  the 
nomination  of  the  Minister  of  Finance,  and  hold  office  during  good 
behavior. 

There  is  connected  with  the  court  a  body  of  twenty-six  attorneys 
(conseillers  referendalres},  of  the  first  class,  sixty  of  the  second 
class,  and  twenty-five  auditors,  likewise  divided  into  two  classes.  No 
one  can  become  an  attorney  of  the  first  class  who  has  not  served  two 
years  in  the  second  class,  one  half  of  the  promotions  being  made  by 
selection,  and  one  half  on  the  basis  of  length  of  service.  In  the  same 
way  one  half  of  the  appointments  of  attorneys  of  the  second  class  must 
be  made  from  among  the  auditors  of  the  first  class.  The  auditors  are 
appointed  by  competitive  examination  from  among  licensees  in  law 
(licencie  en  droit).  With  these  qualifications  promotions  and  appoint- 
ments of  the  subordinate  officers  of  the  court  follow  the  manner 
of  appointment  of  judges  (conseillers  ma/tires').  It  is  the  subordinates 
who  perform  the  actual  work  of  auditing  and  verifying  accounts  and 
of  making  reports  to  be  acted  upon  by  the  judges. 

A  very  important   adjunct   of  the  court  is   an  institution   styled   the 


REGULATION  OF  TREASURY  OPERATIONS       10$ 

functionaries  responsible  for  the  receipt  or  disbursement  of 
public  revenues.  The  court  after  passing  in  reyiew  all 
vouchers20  and  determining  their  regularity,  renders  first  a 
provisional  judgment,  to  which  the  accountant  by  present- 
ing new  documents,  may  object  within  three  months.  At 
the  expiration  of  that  time  final  judgment  is  rendered  to 
which  again  appeal  may  be  made  either  for  revision  by 
the  court  itself  (pourvoi  en  revision)  or  for  cassation  by 
the  Council  of  State  (pourvoi  en  cassation).  Revision 
may  be  demanded  by  the  accountant  for  any  reason  what- 
ever, provided  the  request  is  supported  by  documents  ob- 
tained subsequently  to  the  rendering  of  judgment.  De- 
Public  Ministry  (ministere  public"),  which  consists  of  an  Attorney 
General  (procureur  general),  with  an  assistant  (avocat  general),  chosen 
from  among  the  attorneys  (conseillers  referendaires),  of  the  first 
class. 

It  is  the  duty  of  the  Attorney  General  to  conduct  the  correspondence 
between  the  Court  of  Accounts  and  the  ministries,  replying  to  any 
requests  for  information  which  they  may  address  to  him.  He  gathers 
likewise  from  the  ministries  information  needed  by  the  court  and  has 
prepared  a  general  statement  with  regard  to  all  accountants  whose  ac- 
counts should  be  presented  to  the  court.  He  also  watches  over  the 
work  of  the  court,  ascertains  that  the  sessions  of  the  Chambers  are 
regularly  held,  that  the  other  officers  promptly  perform  their  duties  and 
that  all  accounts  are  presented  within  the  time  limits  prescribed  by  law. 
Any  delay  or  negligence  he  reports  to  the  first  president.  He  may 
take  part  in  the  examination  of  any  account  when  he  deems  such  a 
course  necessary,  and  by  notifying  the  President  of  a  Chamber  and 
having  a  day  fixed  for  that  purpose,  he  may  be  heard  before  the 
Chamber  regarding  any  matter  over  which  the  court  has  jurisdiction. 
When  the  whole  court  (chambre  du  conseil)  is  considering  matters 
of  jurisdiction  or  other  general  questions,  or  preparing  and  discussing 
public  reports,  the  Attorney  General  takes  part  in  the  discussion  and  has 
a  vote. 

20  In  case  a  disbursing  officer  has  made  payment  upon  the  requisition 
of  officers  authorized  to  issue  warrants,  he  is  not  held  responsible,  even 
though  the  court  finds  the  warrant  irregular.  The  court  only  points 
out  the  irregularity  since  its  jurisdiction  does  not  extend  to  those  who 
authorize  expenditures  (ordonnateurs). 


IO6        JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

mand  for  revision  may  likewise  be  made  by  the  Attorney 
General  (procureur  general),  or  the  court  may  revise  upon 
its  own  motion,  when  in  the  revision  of  other  accounts 
errors  or  omissions  have  come  to  light.  There  is  no  fixed 
time  within  which  revision  must  take  place.  Appeal  in 
cassation  may  be  based  upon  errors  in  law  or  form,  and 
upon  lack  of  jurisdiction  or  excess  of  power.  It  must  be 
made  by  the  accountant  interested  or  by  the  head  of  one 
of  the  ministerial  departments  within  the  space  of  three 
weeks.  The  power  of  the  Council  of  State  in  such  cases 
is  limited  to  sending  the  account  for  revision  to  one  of  the 
chambers  of  the  Court  of  Accounts  which  has  not  already 
passed  upon  it. 

A  final  decree  of  the  Court  of  Accounts  declares  an  ac- 
count balanced,  in  advance,  or  in  arrears.  In  the  first  two 
cases  the  accountant  is  discharged  and  his  bond  cancelled; 
in  the  third  the  deficiency  has  to  be  paid  within  a  time  pre- 
scribed by  law,  at  the  end  of  which  execution  is  issued  and 
the  bondsmen  are  held  responsible.  The  court  has  no 
jurisdiction  over  the  person  of  accountants;  if  any  fraud 
or  embezzlement  is  discovered  the  Minister  of  Finance  is 
notified,  and  it  is  his  duty  through  the  Minister  of  Justice, 
to  bring  the  matter  before  the  ordinary  civil  tribunals. 

Whenever  operations  not  contemplated  by  law  are  dis- 
covered by  the  Court  of  Accounts  (comptabilite  de  fait), 
the  officers  responsible  are  required  to  appear  before  the 
court  and  furnish  the  same  vouchers  as  in  the  case  of 
regular  operations.  This,  however,  applies  only  to  irregu- 
larities with  the  public  revenues  such  as  the  drawing  of 
funds  upon  fictitious  warrants,  or  the  failure  to  deposit 
funds  which  should  have  been  deposited;  the  court  will 
not  take  cognizance  of  the  regularity  of  the  public  service 
by  which  an  expenditure  is  caused.21  Within  the  limits  of 

21  Case  of  Alexander  Dubois,  cour  des  comptes,  June  25,  1900. 


REGULATION  OF  TREASURY  OPERATIONS       IO/ 

its  jurisdiction,  the  requirements  of  the  court  concerning 
irregular  operations  are  likely  to  prove  severe,  since  in 
general,  it  will  not  be  easy  to  support  irregular  transactions 
by  regular  vouchers.  In  this  field,  moreover,  contrary  to 
the  general  rule,22  officers  who  authorize  disbursements  are 
amenable  to  the  court's  jurisdiction. 

Aside  from  its  jurisdiction  as  a  judicial  tribunal,  the 
court  exerts  an  influence  with  regard  both  to  the  accounting 
and  the  authorization  of  expenditures,  which  is  perhaps  of 
greater  effect  than  the  formal  functions  just  described. 
After  passing  upon  the  annual  accounts  each  year,  the 
court  issues  two  general  declarations  addressed  to  the  Min- 
ister of  Finance  and  communicated  to  the  Senate  and  the 
Chamber  of  Deputies.  The  first  of  these  has  reference  to 
the  annual  operations,  and  concerns  itselfs  chiefly  with 
matters  of  form  and  technical  accuracy;  the  second  relates 
to  the  budget  period  which  has  expired  (situation  defini- 
tive de  I'exercice  expire),  and  affects  mainly  those  officers 
responsible  for  incurring  expenditures.  By  making  public 
any  discrepancies  between  the  figures  which  they  submit 
and  the  accounts  upon  which  the  court  is  obliged  to  pass, 
it  exercises  upon  these  officers  a  sort  of  indirect  control. 

More  important  still  is  the  annual  report  to  the  Presi- 
dent which  contains  a  summary  of  the  infractions  upon  the 
budget  law  and  suggestions  of  reform.  When  this  report 
is  in  the  hands  of  the  executive,  the  various  services  con- 
cerned are  requested  to  explain  the  irregularities  indicated, 
and  the  report  together  with  the  response  is  printed  and  laid 
before  the  two  Chambers.  Here  again  through  the  pub- 
licity given  this  document,  the  court,  without  exercising  any 

23  Art.  1 8,  law  of  Sept.  16,  1807,  creating  the  Court  of  Accounts  had 
provided  that  in  no  case  should  its  jurisdiction  extend  over  those  who 
authorize  public  expenditures  (ordonnateurs) . 


IO8        JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

jurisdiction  whatever,  exerts  perhaps  the  most  effective 
control  upon  the  contracting  of  expenditures  which  the 
French  budgetary  system  provides. 

After  all  the  accounts  of  a  budget  period  have  been  acted 
upon  by  the  Court  of  Accounts,  formal  control  is  completed 
by  the  perfunctory  passage  of  a  law  of  indemnity  (loi  de 
reglement).23  The  actual  legislative  power  over  expendi- 
ture is  exercised  in  preparing  and  enacting  the  budget; 
detailed  direction  over  the  execution  of  its  grants  the 
French  Chamber  does  not  assume. 

In  Germany  administrative  decentralization  throws  the 
burden  of  imperial  functions  largely  upon  Prussian  officers 
or  those  of  other  individual  states.24  It  follows  that  the 
state  control  system,  that  of  Prussia  being  by  far  the  most 
important,  furnish  the  significant  material  for  comparative 
study.  Prussian  treasury  regulation  involves  the  checking 
of  actual  cash  manipulated  (Kassenrevision — Kassenkon- 
trolle)25  and  the  control  of  all  accounting  operations  irre- 

28  Cf.  supra,  p.  91. 

24  The   local   operations   connected   with   the   collection   of   duties   and 
other  federal  taxes,  all  of  which  in  the  United  States  are  performed 
by  organs  of  the  Federal   Government,   are  as   a  rule   accomplished  in 
Germany  either  by  Prussian  officers  or  by  officers  of  the  state  in  which 
the    transaction    occurs,    and    thus    fall    within    the   jurisdiction    of    the 
state  and  local  organs  of  control. 

25  In  order  to  check  operations  in  cash,  both  the  central  treasury  and 
the  treasuries  of  special  services  in  Berlin,  as  well  as  the  provincial  and 
local  treasuries,  are  subject  to  a  regular  inspection  at  least  every  three 
months,    and   to    further   inspection   at   irregular   intervals   and   without 
previous   warning.      It  is   the   duty   of   the  Finance   Minister   or   other 
minister  concerned,  and,  for  the  provincial  and  local  treasuries,  of  the 
provincial  President  to  see  that  these  inspections  are  faithfully  carried 
out.      All   treasuries   in   the   provinces,    whether   local,    special,    district 
or  provincial,  must  be  inspected  on  the  same  day  and  at  the  same  hour. 
Each  visitation  must  be  certified  by  the  inspector,   and  his   certificate 
which    either   vouches    for   the    regularity   of    all   transactions   or   cites 
irregularities  discovered,  must  be  countersigned  or  acknowledged  by  the 


REGULATION  OF  TREASURY  OPERATIONS 

spective  of  the  handling  of  funds  (Rechnungskontrolle)  ,26 
Treasury  administration  in  Prussia  centers  in  the  Min- 
istry of  Finance.  For  all  cases  except  those  which  the 
minister  reserves  for  personal  attention,  treasury  operations 
are  supervised  by  the  directors  of  three  main  divisions  into 
which  the  treasury  is  divided.  The  first  of  these  divisions, 
directed  by  an  under-secretary,  has  charge  of  the  general 
budgetary  and  treasury  machinery  (£tat-  und  Kassen- 
wesen),  while  the  second  and  third,  each  under  a  director, 
administer  respectively  the  direct  and  the  indirect  taxes.27 

Director  of  the  treasury  inspected.  The  certificate  is  then  sent  to  the 
chief  of  the  particular  service,  the  minister  or  the  provincial  President 
as  the  case  may  be.  In  case  of  shortage  resort  is  had  to  summary 
proceedings  (Defektverfahren},  to  compel  the  officer  or  his  bondsman 
to  make  good  the  amount.  Such  proceeding  does  not  of  course  bar 
prosecution  in  case  of  criminal  malfeasance. 

26  This  involves  an  inquiry  not  only  into  the  mathematical  accuracy 
of  accounts  but  should  insure  at  the  same  time,  the  observance  of  proper 
forms,  and  a  correspondence  between  the  operations  actually  performed 
and  those  authorized  by  the  proper  superior  officers.  The  actual  work 
of  securing  these  results  is  performed  in  part  in  conjunction  with  the 
treasury  inspection  just  described,  and  devolves  usually,  so  far  as  local 
accounts  are  concerned  upon  inspectors  delegated  by  the  provincial  or 
district  Government. 

It  should  be  here  noted  that  for  the  purpose  of  administration  and 
local  government  the  consecutive  divisions  of  Prussian  territory  are, 
province,  government  district  (Regierungsbezirk),  circle  (Kreis),  and 
commune  (Gemeinde) ,  with  certain  variations  such  as  Stadtkreis, 
Landgemeinde,  etc.,  in  case  of  the  last  two  units.  The  government  dis- 
trict is  merely  an  administrative  unit  but  has  no  organs  of  self  govern- 
ment. As  will  be  seen,  in  case  there  is  no  branch  of  the  central 
treasury  in  the  circles,  local  collectors  remit  directly  to  the  district 
treasury  (Bezirkshauptkasse).  Generally,  however,  the  committee  of 
the  circle  is  charged  with  the  auditing  of  accounts  of  rural  communes 
(Landgemeindeordnung  of  July  3,  1891;  div.  2,  art.  10,  sec.  121). 

"  Functions  of  the  Ministry  of  Finance  outside  of  these  three  divisions 
cover  such  duties  as  the  administration  of  the  public  debt.  Still  other 
branches  of  finance  administration  come  under  the  direction  of  the 


1 10        JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

The  work  of  these  divisions  covers  for  the  most  part  those 
operations  of  the  Ministry  of  Finance  which  have  to  do 
with  collecting,  disbursing  and  accounting  for,  public  reve- 
nues. Subordinate  to  these  divisions  is  a  whole  hierarchy 
of  officials,  a  part  of  whom  perform  their  duties  at  the 
capital  and  a  part  in  the  provinces.28 

The  organization  of  provincial  and  local  administration 
of  revenue  is  somewhat  different  for  the  direct  and  indi- 
rect taxes.  The  latter  are  administered  by  the  provincial 
revenue  office  (Provinzialsteuerdirektion) ,  under  which 
are  several  grades  of  customs  offices  administering  at  the 
same  time,  the  imperial  taxes.  Ultimate  authority  over  the 
personnel  of  the  service  rests  with  the  President  of  the 
Province  (Oberprdsident) ,  through  whom  likewise  all 
communications  with  the  central  treasury  must  be  con- 
ducted.29 Direct  taxes  are  administered  by  a  division  of 

particular  ministry  with  which  they  are  closely  related.  Thus  the 
administration  of  forest  and  state  lands,  which  has  a  decidedly  financial 
aspect,  is  controlled  by  the  Ministry  of  Agriculture,  while  mines  are 
administered  by  the  Ministry  of  Trade  and  Commerce,  and  railways  by 
the  Ministry  of  Public  Works.  The  Finance  Minister  exercises  by  no 
means  absolute  power;  in  addition  to  the  restrictions  placed  upon  him 
by  the  constitution  and  laws,  he  must  be  guided  by  the  principle  of 
ministerial  solidarity.  This  makes  it  necessary  for  him  to  work  in 
harmony  with  the  Minister-President,  who  is  usually  at  the  same  time 
Chancellor  of  the  Empire  and  direct  representative  of  the  King  and 
Emperor. 

28  In  the  first  category,  are  such  services  as  the  mint  and  the  general 
lottery,  both  under  the  division  of  budget  and  treasury,  and  the  central 
stamp  warehouse  in  Berlin  under  the  division  of  indirect  taxes.     Like- 
wise all   Prussian  customs  officers  performing  their  duties  in  parts  of 
the  empire  outside  of  Prussia,  are  directly  associated  with  the  central 
division  of  indirect  taxes. 

29  The  provincial  revenue  office  of  Brandenburg  in  Berlin,  also  the  city 
government    of    Berlin    (Stadtkreis) ,    and   the    government    of   Hohen- 
zollern    in    Sigmarinen    may    communicate    directly    with    the    treasury 
division  of  indirect  taxes. 


REGULATION  OF  TREASURY  OPERATIONS       I  I  I 

the  district  government,  through  which  likewise  the  gov- 
ernment acts  in  the  administration  of  forests  and  state 
lands  (Abteilung  der  Bezirksregierung  -fur  die  Verwalt- 
ung  der  direkten  Steuern  und  der  Domdnen  und  Forsten). 
Here  again  except  in  Berlin,  communication  with  the  cen- 
tral treasury  is  through  the  Provincial  President.30  All 
local  and  intermediate  treasuries  act  at  the  same  time,  as 
collecting  and  disbursing  organs  for  their  respective  branches 
of  government.  Through  the  main  division  of  the  central 
treasury  the  results  of  their  operations  come  finally  under 
the  jurisdiction  of  the  superior  Chamber  of  Accounts  (Ober- 
rechnungskammer)  .31 

The  Prussian  Chamber  of  Accounts  is  the  analog  of  the 
Court  of  Accounts  in  France.     Its  members  are  appointed 

80  In  every  district  there  is  a  central  district  treasury    (Regierungs- 
hauptkasse),    directed    by    a    single    treasurer    (Kassenrat).     In    some 
provinces,    especially   in   the   newer   ones,   and  in  parts  of   the   Rhine 
province,  where  the  governments  of  the  circles  are  without  treasuries, 
all  the  direct  taxes  are  collected  by  the  local  collectors  in  the  com- 
munes, and  whatever  is  not  destined  for  local  purposes  is  sent  directly 
to  the  district  treasury.      Elsewhere  local  collections  are  sent  first  to 
the  treasury  of  the  circle  and  thence  forwarded  to  the  district  treasury. 

81  The  jurisdiction  of  the   Chamber  of  Accounts   is   not  confined  to 
services  connected  with  the  Ministry  of  Finance.     There  are  a  number 
of  social  and  industrial  institutions  of  the  Government  which  administer 
their  treasuries  independently  of  the  Finance  Ministry.      Such  for  in- 
stance are  the  treasuries  of  the  schools  and  universities,  the  hospital 
service,  the  police  service  and  others.      Likewise  the  state  mines  and 
the  railways  administer  separately  their  finances.      In  all  these  cases, 
however,    the    principle    of    subjecting    accounts    progressively    to    the 
control  of  divisions  of  the  service  next  in  rank  above  the  division  by 
which  the  account  was  submitted  is  uniformly  observed.      Decisions  of 
the  various  auditing  bodies  that  involve  private  rights  may  be  attacked 
before  the  ordinary  civil  courts  (Landgemeindeordnung  of  July  3,  1891, 
art.  10,  sec.  121,  Kreisordnung  of  Dec.  13,  1872,  div.  3,  art.  3,  sec.  128, 
I28aandi29).  For  a  discussion  of  the  whole  auditing  system  see  Heckel, 
Max  von,  "  Das  Budget/'  p.  272  ff. 


112        JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

by  the  King  and  occupy  the  position  of  judicial  officers.32 
The  procedure  of  the  chamber  is  somewhat  less  formally 
judicial  than  is  the  case  with  the  French  court  and  it  cen- 
tralizes to  a  greater  extent  than  is  true  in  France  the  gen- 
aral  control  function.  Though  freedom  is  left  with  the 
chamber  to  determine  the  form  which  its  action  shall  take, 
opportunity  is  made  for  investigation  on  the  spot  where 
accounting  services  are  performed.  In  conducting  such 
investigations,  both  the  chamber  and  the  higher  administra- 
tive officers  perform  through  a  corps  of  inspectors  ap- 
pointed for  the  purpose,  some  of  the  work  accomplished 
in  France  by  the  general  inspection  of  finance.33 

82  Historically  the  Prussian  Chamber  dates  from  the  reign  of  Frederick 
William  I  by  whom  it  was  established  in  1717  as  the  General  Chamber 
of  Accounts  (Generalrechnungskammer).  In  its  present  form,  it 
rests  upon  a  decree  of  Dec.  18,  1824,  as  modified  after  the  formation 
of  the  empire  by  the  law  of  March  27,  1872.  Until  1826  the  jurisdiction 
of  the  Chamber  was  shared  with  the  Board  of  General  Control 
(Behorde  fiir  die  Generalkontrolle'),  which  was  abolished  in  that 
year,  leaving  the  control  function  exclusively  with  the  Oberrechnungs- 
kammer.  The  Chamber  consists  of  a  President,  two  Directors  and 
fourteen  Councillors  all  appointed  by  the  King  and  directly  responsible 
to  him.  The  President  is  appointed  upon  the  nomination  of  the 
Cabinet,  and  the  Directors  and  Councillors  upon  nomination  of  the 
President  with  the  approval  of  the  presiding  officer  of  the  cabinet. 
Near  relatives  by  blood  or  marriage  are  not  permitted  to  serve  in  the 
Chamber  at  the  same  time,  and  the  members  are  not  allowed  to  hold 
any  other  remunerative  office  or  to  be  members  of  either  house  of  the 
Prussian  Landtag.  The  President  connot  vote  except  in  case  of  tie, 
but  he  may  for  fourteen  days  suspend  a  decision  of  the  chamber,  at 
the  end  of  which  time  the  decision  suspended  must  be  again  considered 
in  collegiate  session  and  finally  acted  upon.  Regulations  regarding  the 
routine  of  business  are  determined  by  royal  ordinance  and  must  be 
communicated  to  the  Legislature.  Unlike  the  work  of  the  French 
Court  of  Accounts,  that  of  the  Prussian  Chamber  is  designated  as  an 
administrative  rather  than  as  a  judicial  control  (Verwaltungskon- 
trolle'). 

88  The  local  functions  analogous  to  those  of  the  General  Inspection  of 
Finance  devolve  largely  upon  the  officers  of  the  district  governments 


REGULATION  OF  TREASURY  OPERATIONS       I  1 3 

Although  the  Chamber  of  Accounts  cooperates  with  the 
higher  and  intermediate  administrative  officers  in  securing 
the  formal  regularity  of  accounts,  its  legal  relation  to  the 
administration  in  matters  of  budgetary  control  is  that  of  a 
superior  tribunal.34  Besides  checking  the  accuracy  and 
regularity  of  accounts  its  activity  is  directed  towards  se- 
curing the  faithful  execution  of  the  budget  law  (Vcr- 
waltungskontrolle).35  The  chamber  must  not  only  assure 

(Besirksregierung).  Accounts  of  the  rural  communes  are  audited  by 
the  committees  of  the  circle  (Kreisausschusse). 

The  formal  audits  of  the  Chamber  are  conducted  according  to  budget 
years  (Oct.  i  to  Sept.  30),  the  accounts  of  each  year  being  revised 
during  the  next  succeeding  year.  For  this  purpose  cognizance  is  taken 
only  of  the  actual  operations  (gestion — Gebarung),  and  not  of  the 
results  accruing  from  laws  in  force  during  the  year  (exercice). 
When  an  audit  is  completed  and  report  laid  before  the  Chamber,  the 
accounting  officers  are  notified  of  any  irregularities  discovered  and  given 
opportunity  to  respond.  In  case  satisfactory  explanation  is  made,  or 
if  the  accountant  recognizes  and  corrects  the  irregularity,  a  quittance 
without  reservation  (ohne  Vorbehalt),  is  issued.  When,  however, 
the  irregularity  involves  a  reimbursement,  the  right  to  which  the  ac- 
countant refuses  to  recognize,  or  if  such  reimbursement  is  made  under 
protest,  the  accounting  officer  entering  claim  for  return  of  the  amount, 
report  is  made  with  reservation  (mit  Vorbehalt}.  Such  cases  may 
involve  a  violation  of  official  duty  thus  subjecting  the  accountant  to 
punishment  at  the  hands  of  a  superior,  in  which  case,  final  recourse,  if 
any,  would  be  to  the  administrative  court ;  they  may,  however,  involve 
criminal  malfeasance  and  subject  the  accountant  to  prosecution. 

84  The  Chamber  is  entirely  independent  of  the  several  ministerial  de- 
partments, being  subordinated  directly  to  the  King.  Excepting  political 
funds  including  those  voted  to  the  Minister  of  Interior  for  private 
police  purposes,  it  has  jurisdiction  over  all  budgetary  operations  of  the 
state  as  to  form,  technical  accuracy  and  legality.  Accounts  of  minor 
importance  already  audited  by  the  proper  administrative  authorities, 
may  be  passed  without  further  examination,  but  such  action  is  entirely 
discretionary  with  the  Chamber. 

*The  work  of  the  Chamber,  though  performed  generally  after  all  the 
operations  of  the  year  are  completed,  is  by  no  means  a  perfunctory  pro- 
ceeding. Accounting  officers  realize  that  any  mistakes  or  irregularities 

9 


114        JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

itself  that  the  revenues  have  been  legally  collected  and  dis- 
bursed but  it  must  ascertain  whether  the  most  feasible 
method  of  carrying  out  the  law  has  been  adopted.  At  the 
end  of  each  year  the  chamber  makes  formal  report  to  the 
King  citing  irregularities  discovered  and  suggesting  re- 
forms. There  is  also  prepared  annually  a  general  state 
account  (allgemeine  Staatsrechnung) ,  which  is  accompa- 
nied by  observations  of  the  chamber  and  laid  before  the 
legislature.36 

The  reports  of  the  chamber  are  chiefly  valuable  on  ac- 
count of  the  moral  influence  which  they  exert.  Only  in 
case  of  the  most  flagrant  over-running  of  appropriations  is 
there  serious  discussion.37  The  authority  of  the  chamber 
over  the  higher  officers  who  authorize  expenditures  (or- 

which  may  fail  of  detection  in  the  examination  conducted  by  the  ad- 
ministrative officers,  are  practically  sure  to  be  discovered  by  the 
investigations  of  the  Chambers  of  Accounts  and  that  they  and  their 
sureties  will  then/  be  charged  with  any  deficit  which  may  result.  The 
respect  for  the  work  of  the  Chamber  which  this  certainly  inspires,  gives 
its  investigations  the  practical  effects  of  a  preventive  check  in  the  only 
field  in  which  under  German  conditions,  such  a  check  outside  of  the 
administration  proper  seems  to  be  practicable. 

86  The  remarks  which  accompany  the  report  of  the  Oberrechnungs- 
kammer  to  the  Legislature,  include  a  resume  of  all  the  facts  brought 
to  light  by  the  investigations  of  the  Chamber  with  the  circumstances 
attending  all  overdrawing  of  credits  and  other  irregularities.  The 
Legislature  then  receives  royal  approval  of  the  report  submitted  by  the 
Oberrechnungskammer  to  the  King,  and  appoints  a  committee  to  con- 
sider it  in  detail.  Upon  the  report  of  this  committee  a  vote  of 
indemnity  is  granted  to  the  administration  (Entlastung — or  Absolu- 
torium}.  The  form  which  this  vote  assumes  depends  in  some  measure 
upon  the  magnitude  and  importance  of  the  budgetary  violation  to  be 
legalized. 

w  The  Legislature  is  practically  compelled  to  grant  the  indemnity,  as 
any  other  course,  besides  causing  a  deadlock  in  the  operations  of  the 
state,  could  not  prevent  the  act  already  accomplished.  Ministers  in 
Germany  are  not  even  politically  responsible  to  the  representatives  of 
the  people,  and  much  less  financially.  Moreover,  appropriations  are  in 
general  overrun  only  with  the  approval  of  the  crown. 


REGULATION  OF  TREASURY  OPERATIONS       I  I  5 

donnateurs) ,  rests  not  on  legal  sanction,  with  power  of 
execution  as  is  the  case  with  mere  accountants,  but  rather 
upon  the  dignity,  the  high  character,  and  the  judicial  stand- 
ing of  the  body  itself. 

Augmented  by  a  number  of  additional  members  the  Prus- 
sian Chamber  of  Accounts'  functions  as  the  Court  of  Ac- 
counts of  the  German  Empire  (Rechnungshof  des  deut- 
schen  Reiches)*8  The  jurisdiction  of  the  imperial  court 
like  that  of  the  Prussian  chamber  extends  to  all  funds, 
excepting  special  political  funds  (Dispositionsfonds)  of  the 
imperial  treasury  and  of  Alsace-Lorraine.  A  report  of 
its  work  is  submitted  each  year  in  the  form  of  a  memorial 
to  the  Emperor,  the  Bundesrat  and  the  Reichstag.  The 
Bundesrat  and  the  Reichstag  each  acts  upon  the  report 
independently  and  each  passes  a  separate  bill  of  indemnity. 

In  most  of  the  smaller  German  states  are  found  organs 
of  control  similar  in  main  outline  to  those  in  operation  in 
Prussia,  although  in  many  cases  the  control  bodies  either 
form  a  part  of  the  Ministry  of  Finance  or  are  subordinated 
to  it.  Bavaria  with  its  elaborate  machinery  consisting  of 
inferior  and  superior  tribunals  provides  merely  for  reports 
to  the  Minister  of  Finance,  with  no  connection  between  the 
control  organs  and  the  legislature.39  In  Wurttemberg,  the 

38  The  Imperial  Court  has  no  permanent  existence  but  is  re-created 
from  year  to  year  by  a  law  which  gives  over  to  the  Prussian  Chamber 
the  imperial  control  function  for  the  single  budget  year  and  provides 
for  the  appointment  ad  hoc  of  such  additional  members  as  are  deemed 
necessary. 

89  The  first  examination  is  conducted  in  the  circles  by  special  officers 
of  the  Chambers  of  Finance  (Rechnungskommissariate  der  Kreisregier- 
ungsfinanzkammern).  At  nearly  all  the  central  disbursing  offices 
there  are  special  Chambers  of  Accounts  whose  agents  conduct  examina- 
tions individually  (bureaumassig) ,  making  reports  for  the  collegiate 
action  of  the  Chamber.  Over  these  bodies  as  a  court  of  last  instance, 
is  the  Supreme  Court  of  Accounts  (oberster  Rechnungshof).  This 
court  is  essentially  a  part  of  the  Ministry  of  Finance. 


Il6        JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

Chamber  of  Accounts  is  incorporated  in  the  Ministry  of 
Finance,  its  president  being  at  the  same  time  director  of 
treasury  administration.40  In  Saxony,  Baden  and  a  num- 
ber of  the  other  states  control  systems  bear  closer  resem- 
blance to  that  of  Prussia.41 

From  the  point  of  view  of  technical  accuracy  the  French 
and  German  systems  of  audit,  regarding  that  of  Prussia 
as  typical,  arrive  at  similar  results  by  essentially  similar 
methods.  In  the  more  clearly  judicial  work  of  preventing 
unauthorized  expenditures,  executive  unity  in  German  gov- 
ernments tends  to  encourage  administrative  control,  and 
to  confine  budgetary  infractions  within  limits  approved  by 
the  executive  branch  of  the  government  as  a  whole.42  The 
great  generality  of  German  budgets  in  some  measure  re- 
moves the  temptation  to  overdraw  credits,  and  with  it,  the 
demand  for  a  preventive  control  apart  from  the  active  ad- 
ministration.43 In  pointing  out  irregularities  which  have 

40  Direktor  der  Staatskassenverwaltung. 

41  Facts  concerning  the  smaller  German  states  are  taken  mainly  from 
Heckel,  pp.  291  ff. 

42  The  center  of  power  in  German  Government  is  not  in  the  Legis- 
lature but  in  the  administration.      The  principle   of  parliamentary  re- 
sponsibility  is   unknown   to    the    German    Government,    ministers   being 
responsible  only  to  the  King  and  Emperor. 

Although  the  Legislature  by  refusing  to  grant  credits,  may  consider- 
ably embarrass  the  administration  which  it  cannot  depose,  its  power  is 
not  such  as  entirely  to  paralyze  it.  The  Government  always  has  some 
sources  of  revenue  not  entirely  dependent  upon  the  annual  grants ; 
indeed  it  is  an  open  constitutional  question  whether  the  executive  may 
not  conduct  the  government  quite  independently  of  legislative  grants. 
The  most  important  political  laws,  such  as  that  fixing  the  number  of 
troops  for  the  army  voted  for  a  period  of  from  five  to  seven  years,  are 
generally  held  to  carry  with  them  the  appropriation  for  their  execution. 
Such  a  system  is  not  calculated  to  prevent  overdrawing  of  credits, 
especially  with  respect  to  those  services  for  which  the  legislature  has 
illiberally  reduced  the  Government's  demands. 

48  For  a  discussion  of  the  relation  between  the  Legislature  and  ad- 
ministration in  budgetary  affairs,  cf.  Laband,  Paul,  Staatsrecht  des 


REGULATION  OF  TREASURY  OPERATIONS       I  I  7 

occurred,  and  suggesting  remedies  the  Chamber  of  Ac- 
counts acts  rather  as  an  aid  to  the  administration  in  check- 
ing the  several  branches  of  its  own  work,  than  in  opposition 
to  it,  by  bringing  its  faults  to  the  attention  of  the  legislature. 

Whatever  influence  in  the  direction  of  budgetary  regu- 
larity the  Chamber  of  Accounts  exerts  upon  the  Prussian 
administration  is  due  in  large  measure  to  the  executive 
unity  of  Prussian  government.  In  France  where  minis- 
terial independence  has  retarded  the  growth  of  such  an 
influence,  students  of  budgetary  affairs  have  long  advocated 
endowing  the  Court  of  Accounts  with  legal  power  to  ap- 
prove in  advance,  or  refuse  to  approve,  all  proposals  which 
involve  a  charge  upon  legislative  appropriations.44  Al- 
though both  countries  are  making  progress  toward  greater 
responsibility  for  the  executive  authorization  of  expendi- 
tures, both  their  systems  of  control  are  still  characterized 
by  an  elaborate  and  effective  organization  for  checking 
subordinate  functionaries,  coupled  with  a  large  measure 
of  fiscal  independence  for  higher  executive  officers. 

The  authority  by  which  the  Comptroller  regulates  the 
whole  disbursing  machinery  of  our  government  finds  in 
neither  France  nor  Germany  a  parallel.  His  power  to 
control  by  binding  judicial  decisions  the  fiscal  operations 
of  cabinet  and  other  higher  officers  is  contrary  to  the  whole 
spirit  of  Continental  administration.  Even  the  regulation 
of  accounting  and  disbursing  operations  requires  from  the 

deutschen  Reiches,  pp.  210  ff.  in  Marquardsen,  Handbuch  des 
offentlichen  Rechts.  Per  contra  cf.  Ronne,  Dr.  Ludwig  von,  Das 
Staatsrecht  des  deutschen  Reichs,"  2te  Aufl.,  Leipzig,  1877,  Bd.  2,  Abt. 
i,  pp.  169  ff.  and  notes;  also  Staatsrecht  der  preussischen  Monarchie. 
3te  Afl.,  Leipzig,  1872,  Bd.  i,  Abt.  i,  pp.  398-417. 

**  For  an  exhaustive  exposition  of  the  control  systems  of  the  various 
European  countries  cf.  Besson,  Emmanuel,  Le  Controle  des  budgets 
en  France  et  a  I'etranger. 


J  1 8        JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

Continental  standpoint  a  formal  body  with  a  formally 
judicial  procedure.45  To  intrust  a  simple  executive  officer 
with  the  duty  of  finally  judging  the  regularity  of  public 
expenditure  seems  a  conspicuous  overlapping  of  executive 
and  judicial  functions.  It  is  paradoxical  that  while  Amer- 
icans often  regard  the  administrative  jurisdictions  of  the 
Continent,  including  the  Courts  of  Accounts,  as  executive 
assumptions  of  judicial  powers,  their  own  system  for  regu- 
lating public  expenditures  should,  from  the  Continental 
point  of  view,  be  subjected  to  practically  the  same  criticism. 
In  the  government  of  the  United  States  where  all  the 
more  conspicuously  judicial  affairs  of  treasury  administra- 
tion fall  within  the  jurisdiction  of  the  ordinary  courts, 
formal  distinction  is  not  made,  between  those  functions  of 
the  administration,  which  are  purely  executive  and  those 
which  partake  of  a  judicial  nature.  Though  nominally  an 
executive  officer  the  Comptroller's  judicial  powers  over 
treasury  administration  are  far  greater  than  are  anywhere 
possessed  by  the  Continental  organs  of  control. 

45  Note  in  this  connection  the  reservation  with  which  Stourm  compli- 
ments the  English  system  of  control :  "  Such  a  rapidity,"  says  Stourm, 
"  should  inspire  us  with  envy.  But  the  regime  of  administrative  control 
which  may  be  adapted  to  England  on  account  of  the  organization  of  her 
public  powers  would  not  from  the  same  point  of  view  be  suitable  in 
France.  With  us  the  uncertainties  and  fluctuations  in  political  condi- 
tions will,  for  a  long  time  to  come,  make  necessary  for  the  judgment  of 
accounts,  the  institution  of  a  high  magistracy  absolutely  independent  of 
the  executive"  (Stourm,  2e  ed.,  p.  568). 


CHAPTER   VIII 

AMERICAN    COMPARED    WITH    CONTINENTAL    JURISDICTION 
OVER    CLAIMS    AGAINST    THE    STATE 

While  the  machinery  of  treasury  regulation  bears  marked 
similarities  among  the  countries  of  Continental  Europe,  the 
relation  in  which  that  machinery  stands  to  other  organs  of 
government  is  strikingly  different  from  country  to  country. 
These  differences  concern  in  large  measure  the  questions  of 
jurisdiction  over  acts  of  treasury  administration.  As  con- 
stituting part  of  the  administrative  machinery  of  govern- 
ment, treasury  organs  are  not  in  general  subject  to  outside 
judicial  control.  When  administrative  acts  come  in  conflict 
with  private  rights  of  individuals,  the  administration,  in 
so  far  as  its  acts  are  judicially  reviewable,  is  amenable,  not 
to  the  ordinary  civil  tribunals  but  to  special  administrative 
courts.  Only  when  government  prerogatives  are  not  at 
stake,  and  the  acts  to  be  reviewed  are  of  a  private  rather 
than  of  a  public  character  will  jurisdiction  be  lodged  with 
the  civil  courts. 

In  several  of  the  Continental  countries  of  which  Prussia 
is  typical,  the  actual  interpretation  of  these  principles  tends 
to  favor  the  civil  jurisdiction.  In  France,  on  the  other 
hand,  and  in  those  countries  which  follow  the  model  of 
France,  a  much  broader  jurisdiction  is  given  to  the  admin- 
istrative courts.  Government  prerogatives  are  assumed  to 
be  at  stake  in  France  in  all  except  a  comparatively  few  of 
the  pecuniary  controversies  of  the  administration;  in  Prus- 
sia such  controversies  are  heard  for  the  most  part  by  the 
civil  courts. 

119 


I2O        JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

Corresponding  to  the  difference  in  jurisdiction,  the  de- 
pendence of  the  French  administrative  courts  upon  the 
administration  is  much  closer  than  in  Prussia.  Though 
the  lower  courts  in  both  countries  are  organs  of  active 
administration,  the  French  tribunals  are  nominally  to  a 
much  larger  extent  than  the  Prussian,  under  the  immediate 
control  of  the  executive.  Members  of  prefectural  councils 
in  France,  which  for  most  purposes  are  the  administrative 
courts  of  first  instance,1  are  named  by  the  executive  and 
hold  office  during  pleasure.  The  councils  are  composed  of 
either  three  or  four  members,  presided  over  by  the  prefect 
who  in  case  of  tie,  has  a  casting  vote.2 

The  bodies  which  fulfill  the  function  of  administrative 
courts  of  first  instance  in  Prussia,  the  circle  and  dis- 
trict committees  (Kreisausschiisse  and  Besirksausschusse), 
likewise  are  the  executive  organs  of  their  respective  juris- 
dictions.3 They  are  not,  however,  subject  to  arbitrary 
removal.  The  circle  committee  consists  of  the  chief  execu- 
tive (Landrat),  as  chairman,  and  six  other  members  chosen 
by  the  local  assembly  (Kreistag  or  Kreisversammlung). 

1The  municipal  council  which  in  some  cases  is  the  court  of  first  in- 
stance is  an  elective  deliberative  body  constituting  within  a  limited 
sphere  the  legislature  of  the  commune. 

2  As  the  prefect  dictates  all  the  active  administration  of  the  depart- 
ment, and  is  the  direct  agent  of  the  ministry,  his  power  of  presiding 
over  the  council  when  sitting  as  a  court  has  been  much  attacked.  As 
a  matter  of  fact  the  power  of  presiding  is  not  generally  exercised,  one 
of  the  councillors  being  selected  each  year  by  decree  to  preside  in  the 
prefect's  absence. 

8  See  reference  to  local  subdivisions  of  Prussian  territory,  ch.  VII, 
note  26.  For  a  brief  description  of  the  administrative  and  local  gov- 
ernment divisions  here  mentioned  and  their  governing  bodies  cf. 
Wilson,  Woodrow,  The  State,  Boston,  1889,  pp.  286-296.  For  more 
detailed  description  of  these  bodies  and  their  administrative  and  local 
government  functions,  cf.  Bornhak,  Conrad,  Preussiches  Staatsrecht, 
Bd.  2,  Freiburg  in  B.,  1889-93,  pp.  276  ff.  and  312  ff. 


COMPARISON   WITH   CONTINENTAL  JURISDICTION       121 

The  Landrat  is  appointed  by  the  King,  usually  from  among 
the  members  of  the  local  assembly,  for  membership  in 
which  body  no  particular  legal  qualifications  are  demanded. 
Members  of  the  committee  serve  for  six  years,  one  third 
being  chosen  every  two  years  without  restriction  as  to 
reelection. 

The  district  President  (Regierungsprdsident)  is  ex-officio 
chairman  of  the  district  committee  which  consists  besides 
of  six  members,  four  of  whom  are  chosen  by  the  provin- 
cial committee.  The  more  important  local  executive  officers 
may  not  be  chosen.  The  remaining  two  members  are 
appointed  by  the  King  for  life,  with  the  restriction  that 
one  of  the  appointees  must  be  qualified  for  a  judicial  office 
and  the  other  for  one  of  the  higher  administrative  offices. 
One  of  the  members  appointed  by  the  King  is  designated 
at  the  time  of  his  appointment  to  preside  in  the  absence  of 
the  President.  In  this  capacity  the  member  designated 
bears  the  title  of  administrative  court  Director  (Verwalt- 
ungsgerichtsdirektor)  * 

The  more  important  differences  in  organization  between 

*  This  title  seems  to  have  been  preserved  from  the  time  when  the 
judicial  work  of  the  district  committee  was  performed  by  a  district 
administrative  court  (Besirksverwaltungsgericht),  while  the  active 
administration  was  conducted  by  a  district  council  (Bezirksrat). 
The  court  consisted  of  five  members  two  of  whom  possessed  the  same 
qualifications  as  the  royally  appointed  members  of  the  present  com- 
mittee, the  other  three  members  being  residents  of  the  district  elected 
by  the  provincial  committee  for  three  years.  The  Bezirksrat  con- 
sisted of  the  district  President,  of  one  higher  administrative  officer  of 
the  district,  appointed  by  the  Minister  of  Interior,  and  of  four  addi- 
tional members,  resident  in  the  district,  and  qualified  for  membership 
in  the  provincial  legislature.  The  latter  were  appointed  by  the  pro- 
vincial committee.  These  two  separate  bodies  were  in  operation  from 
1875  to  1883,  when  their  functions  were  turned  over  to  the  newly  created 
district  committee  (Gesetzsammlung,  1875,  p.  375;  1880,  p.  315;  1883, 
law  of  July  30). 


122        JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

French  and  Prussian  administrative  justice  are  found  in 
the  courts  of  last  resort.  Unlike  the  prefectural  council, 
the  French  Council  of  State  is  not  in  its  entirety  identical 
with  the  court  made  up  from  among  its  members.5  The 
whole  council  consists  of  thirty-two  ordinary  councillors 
(conseillers  en  service  ordinaire},  nineteen  ex-officio  mem- 
bers (conseillers  en  service  extraordinaire},  and  thirty-one 
attorneys  (maitres  des  requetes),  forty  assistant  attorneys 
(auditeurs),  and  a  general  secretary.  The  Council  is  pre- 
sided over  by  the  Minister  of  Justice,  and  in  his  absence  by 
the  Vice  President  of  the  Council.  The  business  of  the 
Council  is  transacted  by  sections,  four  of  which,  consisting 
of  five  members  each,  divide  the  advisory  administrative 
and  legislative  work  according  to  ministries.6  A  fifth  sec- 
tion of  seven  ordinary  councillors  devotes  itself  exclusively 
to  judicial  affairs  (section  du  contentieux)  .7 

The  vice  president  and  the  presidents  of  sections  are 
appointed  by  the  administration  as  are  the  attorneys  and 
ordinary  councillors;8  one  half  of  the  latter,  however,  since 
April  13,  1900,  must  be  selected  from  among  the  attorneys 

8  With  certain  changes  embodying  recent  modifications  this  sketch 
follows  the  article  of  Leon  Aucoc  in  Block's  "  Dictionnaire  de  1'Admin- 
istration  francaise,"  4®  ed.,  Paris,  1898. 

"The  primary  function  of  the  Council  of  State  is  to  render  expert 
advice  to  the  executive  and  the  legislature.  These  duties  have  come 
to  be  in  some  measure  overshadowed  by  its  work  as  an  administrative 
court. 

1  The  minister  may  likewise  preside  over  the  sections  always  with 
voting  power ;  he  cannot,  however,  sit  in  the  section  for  litigation  nor 
in  the  council  when  organized  as  an  administrative  court  (deliberant 
en  mati&re  contentieuse}.  The  other  ministers  have  also  a  seat  in 
the  general  assembly  of  the  council,  but  no  minister  can  vote  on  matters 
not  concerning  his  own  ministry.  They,  likewise,  may  not  sit  in  the 
section  for  litigation. 

8  Attorneys  and  councillors  must  be  respectively  twenty-seven  and 
thirty  years  of  age. 


COMPARISON   WITH   CONTINENTAL  JURISDICTION        123 

and  two  thirds  of  these  in  turn  from  among  the  assistant 
attorneys  of  the  first  class.  The  division  of  assistant  at- 
torneys into  classes  is  on  the  basis  of  length  of  service,  the 
second  or  lower  class  being  recruited  by  competitive  exami- 
nation of  candidates,  who  must  possess  the  equivalent  of  a 
diploma  in  law,  science  or  letters.  The  assignment  to  sec- 
tions of  ordinary  councillors  like  their  appointment  is  by 
decree,  but  official  members  are  distributed  according  to 
the  needs  of  the  service.  Attorneys  and  assistant  attorneys 
are  also  changed  from  section  to  section  as  the  service  may 
require. 

The  Council  organized  as  an  administrative  court  (deli- 
berant  en  matiere  contentieuse)  consists  of  the  section  for 
litigation  increased  by  eight  ordinary  councillors  chosen 
from  among  the  other  sections  by  the  Vice  President  of 
the  Council  in  conjunction  with  the  presidents  of  sections 
and  removable  by  the  same  authority.  The  court  thus  con- 
stituted is  presided  over  by  the  Vice  President,  and  in  his 
absence,  by  the  president  of  the  section  for  litigation.  A 
large  part  of  the  court's  work  is  performed  by  a  body 
known  as  the  Public  Ministry  (minister e  public),  which 
consists  of  four  attorneys  of  the  council  (maitres  des 
requetes),  designated  by  the  President  of  the  Republic  to 
act  as  preliminary  judges.9  As  a  large  proportion  of  the 
decisions  made  by  members  of  this  body  are  confirmed 
without  question,  they  often  constitute  to  all  intents  and 
purposes  the  real  judges. 

Procedure  before  the  Council  of  State  depends  in  part 
on  the  nature  of  the  case  at  bar  but  in  large  measure  upon 
the  manner  of  its  presentation.  Formerly,  all  cases  except 
those  brought  by  a  minister  had  to  be  regularly  presented 

8  The  attorneys  so  designated  are  styled  individually  commissaries  of 
the  government  (commissaires  du  gouvernement). 


124        JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

by  a  lawyer  of  the  Council.10  At  present  when  a  case  in- 
volves small  pecuniary  interest11  it  is  given  directly  to  a 
Commissary  of  the  Government  (member  of  the  Public 
Ministry)  who  passes  upon  it  and  submits  it  for  final  de- 
cision to  the  section  for  litigation.12  Only  upon  request 
of  a  Commissary  or  a  councillor  are  such  cases  heard  by 
the  full  court. 

Cases  duly  presented  by  a  lawyer  are  first  taken  up  by 
the  section  for  litigation,  three  councillors  constituting  a 
quorum.  With  the  cooperation  of  the  Commissary  of  the 
Government,  a  report  is  drawn  up  and  distributed  in  printed 
form  to  all  interested  parties.  The  case  is  later  taken  up 
in  open  session  of  the  court  and  the  argument  of  both 
parties  presented  whereupon  the  Commissary  gives  a  pro- 
visional decision.  After  hearing  a  number  of  cases,  the 
Council  goes  into  closed  session  and  renders  final  decision. 
Since  1872,  decisions  of  the  Council  of  State  organized  as 
an  administrative  court  are  executory  in  the  name  of  the 
Council  itself.13 

The  Prussian  administrative  court  of  last  resort  (Ober- 
verwaltungsgericht) ,  unlike  the  Council  of  State,  is  oc- 
cupied exclusively  with  the  judicial  affairs  of  the  adminis- 
tration. One  half  of  its  members  must  be  qualified  to  act 
as  judges,  while  for  the  other  half,  eligibility  for  appoint- 
ment to  a  higher  administrative  office  is  required.  The 

10  Decree  of  July  22,  1806. 

11  Many  questions  concerning  direct  taxes  come  in  this  category ;  also 
questions   concerning   elections   to   the   general   councils   of   the   depart- 
ments, arrondissements,  and  communes,  various  police  matters,  and  by 
decree  of  July  22,  1889,  appeals  from  the  decisions  of  executive  officers. 
The   less   formal   procedure   is   calculated   to    facilitate   recourse   to   the 
council ;  it  is  usually  accompanied  by  a  remission  of  fees. 

12  The  section  usually  acts  upon  a  number  of  cases  at  once;  its  pro- 
ceedings take  place  in  closed  session. 

18  They  were  formerly  drawn  up  as  decrees  signed  by  the  executive. 


COMPARISON   WITH   CONTINENTAL  JURISDICTION       125 

appointment  is  made  for  life  by  the  King  upon  nomination 
of  the  Cabinet,  and  only  the  sentence  of  a  tribunal  of  justice 
can  work  a  removal;  all  members  must  be  at  least  thirty 
years  of  age.  The  King  likewise  appoints  a  first  president 
and  presidents  of  senate,  the  senates  resembling  somewhat 
the  sections  of  the  French  council  of  State.  The  first 
president  is  chairman  of  the  senate  to  which  he  belongs, 
and  presides  over  the  sessions  of  the  whole  court ;  the  other 
senates  are  presided  over  by  their  respective  presidents.14 
The  subdivision  into  senates  is  made  upon  the  recommenda- 
tion of  the  Cabinet,  but  members  are  distributed  by  a  body 
called  the  Presidium,  which  consists  of  the  first  president 
and  presidents  of  senate  together  with  the  senior  member 
of  the  court.15  The  Prasidium  also  distributes  the  work 
among  the  senates.16 

Complaints  before  the  administrative  courts  must  be  made 
in  writing  within  two  weeks  from  the  notice  of  the  act  to 
be  attacked.  If  the  defendant  can  satisfy  the  court  at  the 
start  that  the  charge  is  without  foundation,  it  will  be  at 
once  dismissed;  otherwise  the  trial  proceeds  in  regular 
form,  either  the  facts  submitted  by  the  plaintiff  or  the  legal 
justification  for  the  charge  being  attacked.  Procedure  is 
sometimes  oral  and  sometimes  by  memorial,  but  must 
always  be  oral  if  either  party  so  demands.  It  is  likewise 
public,  unless  the  court,  on  grounds  of  public  policy  or 

14  The  division  into  senates  is  copied  from  the  organization  of  the 
regular  civil  courts.  Indeed  in  technical  organization  the  Prussian 
administrative  courts  differ  but  little  from  the  civil  tribunals  (cf. 
Garner,  J.  W.,  The  German  Judiciary  in  Pol.  Sci.  Quart.,  V.  17,  pp. 
502  ff.). 

16  If  different  members  have  served  the  same  length  of  time  the  oldest 
of  them  acts  with  the  Prasidium. 

16  The  constitution  of  the  Prussian  administrative  court  of  last  resort 
is  found  in  the  law  of  July  3,  1875,  as  modified  by  the  supplementary 
act  of  Aug.  2,  1880  (Gesetzammlung,  1875,  p.  375;  1880,  p.  315). 


126         JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

morals  decides  to  make  it  private.  A  judicial  decision  is  the 
only  way  in  which  an  administrative  process  according  to 
Prussian  law  can  be  determined.  Withdrawal  of  a  suit 
or  compromise  between  the  parties  outside  of  court  will  not 
be  recognized  by  the  court  as  a  reason  for  not  rendering  a 
decision.17 

The  contrasts  between  French  and  Prussian  administra- 
tive justice  appear  most  strikingly  in  connection  with  the 
jurisdiction  of  their  respective  courts.  In  neither  country 
does  the  jurisdiction  of  the  administrative,  over  against  the 
civil  courts  follow  strictly  the  line  of  official  and  non-official 
acts.18  Questions  of  competence  between  the  ordinary  and 
administrative  courts  in  France  were  formerly  decided  by 
the  Council  of  State  itself,  but  are  now  determined  by  the 
Court  of  Conflicts,  composed  of  three  members  of  the 
Council  of  State,  three  members  of  the  Court  of  Cassation, 
two  other  members  chosen  by  the  foregoing  six,  together 
with  the  Minister  of  Justice  who  presides.  The  line  of 
jurisdiction  is  frequently  different  for  cases  arising  in  the 

17  The  purpose  of  this  provision  is  to  discourage  recourse  to  the  court 
merely  for  purposes  of  extortion. 

"As  an  example  of  lack  of  uniformity  in  separating  the  two  juris- 
dictions in  France,  Lowell  calls  attention  to  the  fact  that  questions 
relating  to  indirect  taxes  and  the  lesser  highways  are  heard  by  the 
ordinary  courts  while  those  concerning  direct  taxes  and  the  greater 
highways  come  before  the  administrative  courts  (Lowell,  A.  L.,  Gov- 
ernments and  Parties  in  Continental  Europe,  I.  p.  62).  There  are 
obvious  practical  reasons  for  the  division  adopted.  Hauriou  suggests 
that  cases  concerning  indirect  taxes  involve  only  the  application  of 
statutes  and  not  the  interpretation  of  acts  of  administration  (Hauriou 
Maurice,  Precis  de  droit  administratif  et  de  droit  public  general,  5* 
ed.,  Paris,  1903,  p.  748).  It  has  also  been  suggested  that  a  political 
explanation  in  the  case  of  indirect  taxes  is  to  be  found  in  the  necessity 
of  reconciling  the  people  to  certain  unpopular  taxes  after  the  revolu- 
tion. Procedure  of  the  ordinary  courts  in  tax  matters  is  summary, 
following  closely  that  of  the  administrative  courts. 


COMPARISON   WITH   CONTINENTAL   JURISDICTION        I2/ 

departmental  or  communal  administrations  than  for  those 
in  which  the  general  government  is  directly  a  party.  Liti- 
gation between  the  state  and  its  creditors  is  heard  almost 
without  exception  by  the  administrative  tribunals  when  the 
central  government  is  concerned;  when  a  department  or  a 
commune  is  a  party,  cases  not  involving  expenditures  for 
public  works  come  before  the  ordinary  courts.19 

Recourse  to  administrative  courts  may  be  had  for  excess 
of  power;20  for  interpretation,  when  the  interpretation  of 
an  administrative  act  is  necessary  for  the  decision  of  a  case ; 
in  certain  exceptional  cases,  for  injunctions  (repression), 
to  prevent  the  infraction  of  rights;21  and  finally,  in  full 
jurisdiction  under  which  come  the  great  mass  of  cases  in 
their  nature  pertaining  to  the  administrative  rather  than  to 
the  ordinary  tribunals.22 

Recourse  under  the  first  of  these  heads  is  almost  ex- 
cusively  to  the  Council  of  State.  The  Council  also  has 
primary  jurisdiction  to  interpret  executive  acts  connected 
with  certain  police  matters  and  with  elections  to  the  general 
councils  of  the  department.23  The  Council  may  review  on 

19  It  should  be  noted  that  nearly  all  important  expenditures  of  the 
departments  and  communes  come  under  public  work. 

20  In  such  cases  they  act  simply  as  Courts  of  Cassation.      Laf  erriere 
calls   attention   to   the   especial   development   of  this   line   of   litigation 
since  1872  (Traite  de  la  juridiction  administrative,  II.  p.  412.     See  law 
of  July  17,  1900).     By  a  Court  of  Cassation  is  here  meant  one  which 
merely  overthrows  a  decision  without  rendering  one  to  take  its  place. 
Courts  which  render  decision  on  appeal  are  somtimes  called  to  distinguish 
them,  Courts  of  Revision. 

21  This  jurisdiction  pertains  in  first  instance  principally  to  the  council 
of  the  prefecture. 

aA  discussion  of  the  functions  of  the  Council  under  these  several 
heads  may  be  found  in  Hauriou,  p.  799  (cf.  Lebon  monograph  in 
Marquardsen's  Handbuch,  p.  122). 

29  The  acts  of  special  commissions  and  of  certain  administrative  juris- 
dictions such  as  the  Council  of  Public  Instruction,  though  sometimes 


128        JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

appeal  cases  decided  by  inferior  administrative  tribunals, 
such  as  prefectural  councils  and  administrative  courts  of 
the  colonies,  and  the  acts  of  ministers,  prefects,  and  other 
administrative  authorities.  Decisions  of  the  Court  of  Ac- 
counts may  be  appealed  for  the  violation  either  of  form  or 
of  law.  Jurisdictional  disputes  between  other  administra- 
tive tribunals  are  decided  by  the  Council  of  State.2* 

Financial  controversies  between  the  state  and  its  citizens 
are  in  general  in  France  within  the  province  of  administra- 
tive jurisdiction.  The  great  variety  of  relations  out  of 
which  such  controversies  arise  may  be  roughly  summarized 
as  questions  concerning  the  assessment  and  collection  of 
taxes,  questions  regarding  contracts,  claims  for  indemnity 
on  account  of  injuries,  controversies  over  salaries  and  pen- 
sions of  public  officers  and  employees,  and  finally,  claims 
arising  within  the  administration  in  connection  with  the 
adjustment  of  accounts.  Recourse  in  the  case  of  direct 
taxes  is  in  the  first  instance,  to  the  prefectural  council  with 
appeal  to  the  Council  of  State.25  Contracts  of  the  general 

regarded  as  special  courts  of  last  resort,  may  be  reviewed  by  the 
Council.  Acts  of  administrative  councils  when  they  possess  powers 
of  their  own  may  be  reviewed  as  may  those  of  ordinary  executive 
officers. 

24  There  are  certain  provisions  for  recalling  a  decision  rendered  by 
the  Council.  The  principal  cases  are  those  in  which  a  decision  has 
been  rendered  by  default,  cases  in  which  it  appears  that  an  innocent 
third  party  has  been  injured  by  a  decision,  and  in  certain  other  minor 
cases.  Petitions  for  such  a  recall  must  be  filed  within  two  months  after 
the  decision  is  rendered. 

28  Recourse  to  the  administrative  tribunal's  was  formerly  taken  directly 
from  the  action  of  local  officials,  there  being  no  provision  for  appeal 
to  the  superior  officers  of  the  administrative  hierarchy  proper.  By  the 
laws  of  July  21,  1887,  and  Det.  7,  18.97,  art.  2  and  13  respectively, 
claims  for  a  modification  of  taxes  as  assessed  may  now  be  made  in  the 
office  of  the  mayor,  and)  on  appeal,  before  the  departmental  director  of 
direct  taxes.  They  cannot  be  taken  before  the  General  Director  nor 
the  Minister  of  Finance.  It  will  be  recalled  that  cases  concerning  in- 
direct taxes  are  heard  by  the  ordinary  civil  courts. 


COMPARISON   WITH   CONTINENTAL  JURISDICTION       I  29 

government26  for  the  purchase  of  commodities  (marches 
de  fourniture)  may  be  taken  to  the  administrative  courts 
only  for  a  cash  indemnity;  however  palpably  the  govern- 
ment may  have  broken  its  agreement,  the  courts  will  not 
reinstate  the  contract  nor  render  any  decision  to  nullify  the 
action  of  the  administration. 

A  striking  exception  to  the  rule  assigning  to  the  adminis- 
trative courts  all  questions  in  which  government  preroga- 
tives is  concerned,  is  the  provision  for  taking  before  the 
ordinary  courts  indemnity  claims  for  requisitions  made 
upon  individuals  or  communes,  or  for  the  occupation  of 
private  property  in  connection  with  maneuvers  of  the  army. 
Such  claims  are  heard  in  the  first  instance  by  a  commission 
appointed  by  the  Minister  of  War  and  composed  of  a  ma- 
jority of  civil  members.  This  commission  exercises,  how- 
ever, no  jurisdiction,  but  merely  makes  proposals  which 
claimants  may  reject  and  bring  suit  in  the  civil  courts. 

Claims  arising  out  of  the  prosecution  of  public  works 
whether  for  damages  to  property  or  injuries  to  person  are 
decided  by  the  prefectural  councils.27  Cases  under  public 
works  contracts  both  in  the  central  and  local  administra- 
tions, are  only  within  the  province  of  the  ordinary  courts 
when  they  relate  to  the  private  domain.28  Contractors  may 

29  Contracts  of  departments  and  communes  come  before  the  civil 
courts. 

87  The  Court  of  Conflicts  reinforced  by  a  law  passed  on  April  9,  1898, 
has  introduced  certain  restrictions  upon  this  jurisdiction,  the  most  im- 
portant being,  the  assignment  to  the  ordinary  courts  of  all  demands 
for  indemnity  for  accidents,  made  by  laborers  against  a  contractor 
(entrepreneur).  Prior  to  the  law  of  1898  the  Council  of  State  had 
insisted  upon  unqualified  jurisdiction  in  this  field  for  the  administrative 
courts.  Case  of  Bordelier,  Ct.  Confl.,  May  15,  1886;  Case  of  Lefort, 
C.  d'£.,  Nov.  30,  1877;  Case  of  Cames,  June  21,  1895. 

28  The  private  domain  in  France  includes  the  national  forests,  the 
national  coast  front,  certain  fortifications  and  mines,  and  according  to 


10 


I  30        JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

not  bring  their  claims  before  the  administrative  courts  until 
a  definite  decision  of  the  active  administration  has  been 
rendered.  Concessions  for  construction  and  exploitation 
of  public  utilities  such  as  railways,  tramways  and  lighting 
plants  as  well  as  mining  and  other  similar  concessions,  fall 
likewise  entirely  within  administrative  jurisdiction.29 

Salary  and  pension  claims  for  all  branches  of  the  French 
public  service  pertain  exclusively  to  the  administrative  juris- 
diction. Recourse  to  administrative  courts  may  always  be 
had  whether  the  claim  rests  upon  incorrect  evaluation,  un- 
lawful retention  as  a  matter  of  discipline  or  otherwise,  or 
upon  illegal  removal  from  office.  Pension  cases  likewise 
upon  completion  of  the  prescribed  period  of  faithful  ser- 
vice, may  be  taken  to  the  Council  of  State  if  the  applica- 
tion for  pension  is  rejected  by  the  minister  in  whose  de- 
partment the  service  has  been  performed.30  The  decree 
when  finally  obtained,  must  be  countersigned  by  both  the 
minister  of  the  department  and  the  Minister  of  Finance, 

some  authorities,  certain  personal  property  used  in  connection  with  the 
public  service  as  well  as  incorporeal  rights  such  as  those  of  hunting  and 
fishing. 

29  Contracts  of  this  sort  are  surrounded  by  such  a  mass  of  conditions 
in  favor  of  the  state  as  to  make  the  operations  under  them  resemble 
those  undertaken  directly  by  the  administration. 

80  The  granting  of  a  pension  under  French  law  is  regarded  in  no 
sense  as  an  act  of  grace.  Pensions  are  regarded  as  contingent  an- 
nuities (rentes  viagere),  to  which  civil  and  military  servants  of  the 
state,  having  fulfilled  certain  requirements,  are  entitled.  The  most 
important  of  these  requirements  is  the  accomplishment  of  a  specified 
period  of  faithful  service.  When  this  period  is  completed,  the  right 
of  pension  is  asserted  through  an  application  made  to  the  minister  of 
the  department  in  which  the  person  has  served.  If  the  right  is 
recognized  the  minister  endorses  the  application  and  recommends  to 
the  council  of  state  a  decree  of  liquidation.  The  application  may, 
however,  be  rejected,  in  which  case  the  minister's  decision  may  be 
attacked  before  the  Council. 


COMPARISON   WITH   CONTINENTAL   JURISDICTION       13! 

and  the  name  of  the  functionary  with  the  amount  of  the 
pension  be  inscribed  by  the  Finance  Minister  upon  the  role 
of  pensions  (grand  livre).  By  setting  up  irregularity  the 
Minister  of  Finance  may  refuse  the  inscription,  in  which 
case  recourse  must  again  be  had  to  the  Council  which  can 
only  settle  the  question  of  regularity  but  cannot  force  the 
Minister  to  act.81 

The  difference  between  French  and  Prussian  practice 
appears  strikingly  in  the  disposition  of  claims  arising  out 
of  accounting  operations  of  the  state.  When  an  account- 
ing officer  in  France  feels  his  private  rights  injured  by  the 
act  of  a  superior  officer,  or  any  of  the  organs  of  control, 
such  redress  as  he  has  is  secured  by  process  before  an  ad- 
ministrative court.  Over-drafts  upon  the  local  tax  collec- 
tors are  indemnified  as  was  seen,  upon  appeal  to  the  per- 
fectural  councils;32  in  like  manner,  appeals  from  a  decision 
of  the  Court  of  Accounts,  whether  for  revision  or  cassa- 
tion, are  heard  by  the  Council  of  State.  In  contrast  to  the 
principles  of  French  law,  nearly  every  provision  for  the 
regulation  of  accounts  in  Prussia  reserves  to  the  accountant 
the  privilege  of  appeal,  for  the  protection  of  his  private 
rights,  to  the  ordinary  civil  courts.33 

w  It  is  a  general  principle  of  French  administration  that  whether  debts 
arise  out  of  controversies  settled  by  the  courts,  or  in  the  regular  course 
of  the  public  service,  the  operations  of  liquidation  and  settlement  are 
left  entirely  with  the  active  administration.  There  was  moreover 
formerly  no  procedure  for  compelling  a  minister  to  take  action  if  he 
chose  to  remain  silent.  By  the  law  of  July  17,  1900,  failures  on  the 
part  of  the  minister  to  act  during  four  months  after  demand  is  made 
for  liquidation,  is  interpreted  as  a  refusal  and  recourse  may  then  be 
had  to  the  Council  of  State.  Against  the  Government  there  is  of  course 
no  means  of  execution, 

83  Cf.  supra,  ch.  VII,  note  n. 

•*  Landgemeindeordnung  of  July  3,  1891;  div.  2,  art.  10,  sec.  121, 
par.  i.  Kreisordnung  of  Dec.  13,  1872;  div.  3,  art.  3,  sec.  1283. 


132        JUDICIAL  WOUK  OF  COMPTROLLER  OF  TREASURY 

The  right  to  pursue  pecuniary  claims  before  the  civil 
courts  is  a  fundamental  principle  of  Prussian  law.  Whereas 
in  France  the  great  majority  of  such  claims  are  heard  by 
the  lower  administrative  courts  with  right  of  appeal  to  the 
Council  of  State.  The  only  direct  line  of  jurisdiction  be- 
tween the  Prussian  finance  organs  and  the  administrative 
courts,  concerns  the  administration  of  direct  taxes.34  Dis- 
tinction is  made  between  questions  involving  the  legality 
of  the  tax  and  those  which  have  to  do  with  the  administra- 
tion of  the  finance  machinery.  The  assessment  of  property 
or  income  is  a  matter  of  administrative  jurisdiction,  but 
when  a  person  claims  exemption  from  a  certain  tax  upon 
legal  grounds,  or  seeks  to  reclaim  illegally  collected  taxes, 
process  is  before  the  civil  jurisdiction. 

Prussian  jurisprudence,  in  addition  to  extending  widely 
the  field  of  private  law,  gives  to  the  civil  courts  a  large 
jurisdiction  over  matters  recognized  as  falling  within  the 
realm  of  public  administrative  law.  Technically  all  claims 
against  the  state  have  to  do  with  public  law  since  they  rest 

84  When  an  assessment  made  by  the  local  assessors  (V '  eranlagungs- 
kommission)  has  been  revised  by  the  Commission  of  Appeal  (Beru- 
•fungskommission) ,  which  is  an  organ  of  finance  administration,  appeal 
lies  to  the  Superior  Administrative  Court  (Oberverwaltungsgericht). 
Likewise  with  communal  taxes,  complaint  having  to  do  with  the 
correctness  of  the  assessment,  may  be  appealed  from  the  tax  com- 
mittee (Steuerdeputation},  to  the  district  committee  (Bexirksausschuss), 
which  is  an  administrative  court,  and  finally  to  the  Superior  Admin- 
istrative Court.  See  law  of  June  24,  1891,  Gesetzsammlung,  1891,  p. 
353.  Taxes  are  assessed  by  a  committee  whose  jurisdiction  usually 
comprises  a  circle.  The  chairman  of  the  committee  (Landrat  or  in  some 
cases  Regierungskommissar)  is  the  actual  assessor.  In  each  govern- 
ment district  there  is  a  revisory  committee  (Berufungskommission) 
whose  chairman  (Kommissar),  is  appointed  by  the  Minister  of  Finance. 
A  minority  of  the  committee  is  likewise  chosen  by  the  Finance  Minister 
and  the  majority  by  the  provincial  committee  (Provinzialausschuss). 


COMPARISON    WITH   CONTINENTAL  JURISDICTION        133 

upon  an  entirely  different  foundation  from  claims  between 
individuals.  The  state  as  sovereign,  permits  the  use  of 
its  courts  for  the  pursuit  of  private  claims  against  itself 
only  by  courtesy,  and  not  because  the  citizen  possesses  any 
inherent  right  to  have  his  claim  judicially  determined.  Not 
only  does  Prussia  open  its  civil  courts  to  private  claims,  but 
the  fact  that  the  claim  arises  out  of  an  act  of  sovereignty, 
does  not  in  general  change  the  jurisdiction.  The  state  as 
sovereign  may  annul  ancient  and  established  privileges,  it 
may  appropriate  property  under  the  right  of  eminent  do- 
main35 or  it  may,  through  the  exercise  of  its  police  power,36 
work  injury  to  private  interests;  indemnity  in  all  these 
cases  may  ultimately  be  fixed  by  appeal  to  the  ordinary  civil 
tribunals.  Similarly,  claims  which  involve  the  property 
rights  of  officials  over  against  the  state,  although  clearly 
involving  questions  of  administrative  law,  are  brought  be- 
fore the  civil  courts.37 

By  far  the  widest  extension  of  private  law  over  cases  in 
which  the  state  is  a  party,  arises  through  the  operations  of 
the  state  as  owner  and  manager  of  private  property.  In 
this  capacity  the  state  has  occasion  to  buy  and  sell,  and 
enter  into  contracts  similarly  as  a  private  property  owner 
might  do,  and  when  so  acting,  a  legal  fiction  has  endowed 
it,  under  the  name  of  "  Fiskus"  with  the  character  of  a 

85  The  jurisdiction  of  civil  courts  in  case  of  eminent  domain  pro- 
ceedings is  restricted  to  fixing  the  amount  of  idemnity  on  appeal. 
Zustandigkeitsgesetz  of  Aug.  i,  1883,  §  153;  Gesetzsammlung,  1883, 
p.  298. 

89  Police  regulations  as  a  whole  naturally  fall  within  the  realm  of 
administrative  jurisdiction ;  it  is  only  when  an  established  private  right 
is  invaded  or  when  a  burden  is  laid  upon  one  individual  and  suit  is 
brought  to  have  it  transferred  to  another,  that  civil  courts  have 
jurisdiction. 

87  For  a  discussion  of  administrative  jurisdiction  of  civil  courts,  «f. 
Bornhak,  p.  298. 


134        JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

private  property  owning  corporation  (Vermogensrechtliche 
Personlichkeit).  While  theFiskus  is  naturally  exempt  from 
taxation,  and  still  possesses  some  other  privileges  not  en- 
joyed by  corporations  in  general,  the  tendency  has  been  to 
subject  it  entirely  to  the  principles  of  private  law.  This 
tendency  has  been  definitely  sanctioned  by  an  imperial  law 
which  provides  that  no  case  which,  from  its  subject  matter 
or  the  nature  of  the  complaint,  would  be  heard  by  the  civil 
courts,  may  be  withdrawn  to  any  other  jurisdiction  because 
the  Fiskus  or  a  commune  or  any  other  public  corporation  is 
a  party.38 

By  this  provision,  but  more  particularly  by  stipulations 
concerning  conflicts  between  the  civil  courts  and  admin- 
istrative jurisdictions,39  imperial  law  has  encouraged  uni- 
formity of  jurisdiction  among  the  several  states.  The 
fundamental  principles  of  imperial  law  give  to  civil  courts 
the  decision  of  all  conflicts,  but  there  are  numerous  excep- 
tions to  this  principle.40  Cases  arising  in  any  state  may, 
upon  the  request,  and  with  the  consent  of  the  Bundesrat,  be 
heard  by  the  Imperial  Court  at  Leipzig41  but  this  privilege 
does  not  preclude  any  state  from  establishing  a  special 
tribunal  of  conflicts  in  conformity  with  the  requirements  of 
imperial  law.  At  least  one  half  the  members  of  such  a 

88  Einfuhrungsgestz     zur     Civilprozessordnung,     §     4 ;     Reichsgesetz- 
blatt,   1877,  p.   244.     Imperial  jurisprudence  regards   the  administrative 
courts  as  possessing  only  such  jurisdiction  as  is  especially  assigned  to 
them  by  law,  the  civil  jurisdiction  prevailing  in  all  cases  where  the  law 
is  silent. 

89  Administrative  jurisdiction  may  be  in  this  case  either  an  admin- 
istrative court  or  an  officer.      The  imperial  law  applies  alike  to  those 
states  possessing   administrative   courts,   and  those   in  which  they  are 
absent. 

40  Gerichtsverfassungsgesetz,   §   17;  Reichsgesetsblatt,  1877,  p.  44. 

41  Einfiihrur.gsgesetz    zum    Gerichtsverfassungsgesetz,"    §    17;    Reichs- 
gesetzblatt,    1877.   p.   79. 


COMPARISON   WITH   CONTINENTAL  JURISDICTION        135 

court  must  be  judges  of  either  the  Imperial  Court  or  the 
highest  state  court,  tenure  in  the  Court  of  Conflicts  being 
the  same  as  for  the  chief  office.  All  other  than  ex-officio 
members  must  be  appointed  for  life.  Decisions  must  be 
made  in  public  session  by  not  less  than  five  members,  and 
no  decision  may  deny  jurisdiction  to  the  civil  courts  when 
such  jurisdiction  rests  upon  an  established  court  decision 
which  was  not  drawn  in  question  at  the  time  it  was  made. 

The  Prussian  Court  of  Conflicts  was  reorganized  to  con- 
form to  the  above  provisions  by  a  decree  of  August  i, 
i879,42  and  is  at  present  composed  of  eleven  members  of 
whom  six  are  judges  of  the  Superior  Court  at  Berlin 
(Oberlandesgericht) ,  the  other  five  being  required  to  pos- 
sess either  the  qualifications  of  judge  or  of  higher  adminis- 
trative officers.  Not  less  than  seven  members  may  render 
a  decision. 

The  effect  of  imperial  law  has  been  most  felt  in  those 
states  in  which  the  separation  of  the  active  administration 
from  administrative  justice  occurred  more  largely  under 
French  influence.43  States  which  have  established  admin- 
istrative courts  since  their  inauguration  in  Prussia  have 

*3  Gesetzammlung,  1879,  p.  573.  For  original  organization  see  decree 
of  April  8,  1847,  Gesetzsammlung,  p.  170.  It  will  be  seen  that  the 
organization  of  the  Court  of  Conflicts  precedes  that  of  separate 
administrative  courts,  the  conflicts  in  question  being  between  the  active 
administration  and  the  courts. 

48  In  Hesse  the  highest  administrative  court  so  modeled  as  to  fulfill 
the  requirements  of  imperial  law,  acts  as  a  Court  of  Conflicts.  Although 
the  Hessian  administrative  courts  are  usually  considered  to  date  from 
the  legislation  of  1874  and  1875,  considerable  progress  was  made  toward 
separating  administration  from  administrative  justice  in  1832  (cf.  in 
Marquardsen,  Gareis,  Staatsrecht  des  Grossherzogthums  Hessen,  pp. 
96  and  98).  Administrative  courts  were  established  in  Baden  in  1863 
thus  antedating  those  of  Prussia  by  twelve  years.  All  the  other  large 
states  have  since  taken  similar  action; — Wurttemberg,  1876;  Bavaria, 
1878;  Saxony,  1900. 


136        JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

followed  for  the  most  part  the  Prussian  model.  Beyond 
the  laws  already  mentioned  there  has  been  no  attempt  to 
provide  for  a  closely  uniform  jurisdiction  through  the  em- 
pire ;  except  in  so  far  as  the  Bundesrat  as  chief  administra- 
tive council  of  the  empire,  acts  in  a  judicial  capacity,  the 
empire  has  no  general  administrative  court.** 

The  contrasting  legal  principles  which  determine  the 
boundary  between  administrative  and  civil  jurisdiction  in 
France  and  Germany  rest  for  the  most  part  upon  historical 
foundations.  The  doctrine  of  the  separation  of  the  powers 
which  so  largely  influenced  the  reorganization  of  the  French 
state  after  the  revolution,  and  which  furnishes  the  theoret- 
ical justification  of  separate  administrative  jurisdictions,  in 
France,  has  never  been  accepted  in  Germany.  Administra- 
tive courts  in  Prussia  are  in  some  measure  the  culmination 
of  general  reforms  inaugurated  early  in  the  nineteenth  cen- 
tury by  Stein  and  Hardenberg.  The  conscious  aim  in  all 
these  reforms  has  been  technical  administrative  perfection. 
With  this  purpose  in  view  the  division  of  jurisdiction  be- 
tween the  two  sets  of  courts  has  been  drawn  less  along 
logical,  than  along  practical  lines.  The  jurisdiction  of  ad- 
ministrative courts  has  been  extended  only  far  enough  to 
avoid  the  danger  to  executive  efficiency,  which  might  arise 
from  the  purely  judicial  temper  of  ordinary  civil  courts. 

A  comparison  of  the  two  Continental  systems  according 
to  the  standards  of  Anglo  Saxon  jurisprudence  can  be  of 
little  value.45  Each  must  be  judged,  whether  historically 

**  For  the  description  of  several  so-called  special  Imperial  Administra- 
tive Courts  cf.  in  Marquardsen,  Laband,  Staatsrecht  des  deutschen 
Reiches,  p.  61. 

*  The  restrictions  placed  upon  Prussian  administrative  jurisdiction 
and  the  judicial  character  of  its  organization,  brings  it  superficially 
much  closer  than  the  French  system  to  Anglo  Saxon  standards.  An 
American  writer  has  suggested  that  alongside  of  the  ordinary  civil  law 


COMPARISON   WITH   CONTINENTAL  JURISDICTION       137 

or  with  reference  to  its  present  organization  and  efficiency, 
in  connection  with  the  whole  framework  of  the  govern- 
ment of  which  it  is  a  part.  From  this  view  point  it  is 
worthy  of  note  that  Prussian  civil  courts  have  shown  no 
tendency  toward  troublesome  interference  with  executive 
officers,  and  their  wide  jurisdiction  does  not  imply  neces- 
sarily a  corresponding  restriction  upon  the  operation  of 
government  prerogatives.  In  all  Continental  countries 

there  may  grow  up  in  Germany  "  an  equally  logical  and  equally  in- 
flexible administrative  law,  which  will  control  the  officials  as  effectually 
as  the  common  law  does  in  Anglo  Saxon  countries."  The  same  writer 
adds :  "  It  is  not  improbable  also  that  the  inconvenience  of  two  systems 
of  law  enforced  by  separate  courts  will  in  time  bring  about  the  fusion 
of  the  two  in  the  same  way  that  English  common  law  and  equity  are 
tending  to  become  fused ;  and  if  this  happens  the  government  officers 
will  lose  their  peculiar  privileges  and  become  in  the  end  subject  to  the 
same  tribunals  as  the  rest  of  the  community"  (Lowell,  I.  p.  296). 

To  what  extent  a  tendency  toward  the  diminution  of  official  preroga- 
tive has  actually  been  at  work  in  Germany  since  the  time  when  the 
administration  became  adjusted  to  the  constitutional  system,  is  perhaps 
an  open  question ;  if  such  a  tendency  develops  in  the  future,  it  seems 
probable  that  it  will  occur  through  the  perfection  of  administrative  law 
rather  than  through  its  fusion  with  civil  law.  The  relation  here  is 
essentially  different  from  that  existing  between  the  common  law  and 
equity.  Equity,  though  it  may  at  times  have  been  the  organ  of 
prerogative,  reinforces  the  common  law  by  securing  between  individuals 
a  more  perfect  justice  than  the  rigid  forms  of  the  common  law  permit, 
but  justice  between  individuals,  whatever  their  official  standing,  is  the 
principle  by  which  both  alike  are  inspired.  Administrative  law,  in  the 
peculiar  continental  sense  rests  fundamentally  on  an  essentially  different 
principle.  Efficiently  administered,  its  result  like  that  of  equity,  the 
common  law  pr  the  civil  law  should  be  to  secure  essential  justice,  but 
a  justice  nevertheless  always  in  harmony  with  the  supremacy  of  gov- 
ernment prerogatives.  At  present  there  seems  to  be  no  indication  that 
this  fundamental  difference  will  not  continue  to  distinguish  the  admin- 
istrative from  the  ordinary  civil  law.  It  may  perhaps  even  be  ex- 
pected as  the  administrative  law  becomes  more  perfectly  developed  as 
an  organ  of  justice  that  the  logical  principle  of  the  system  will  appeal 
with  even  greater  force  to  the  Continental  mind. 


138        JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

where  administrative  tribunals  are  found,  the  supremacy 
of  prerogative,  or  in  other  words,  the  unimpeded  progress 
of  administration  is  recognized  as  a  prime  desideratum  of 
public  law. 

In  practical  application,  the  principle  of  executive  su- 
premacy has  kept  French  administrative  courts  in  close 
contact  with  the  government  and  has  imposed  strict  limita- 
tions upon  the  jurisdiction  of  civil  courts.46  Contributing 
to  this  result,  the  fear  of  judicial  interference  has  been 
reinforced  by  a  characteristic  desire  to  develop  adminis- 
trative jurisprudence  into  a  complete  and  logical  system. 
French  jurists  everywhere  recognize  that  the  ultimate  task 
of  administrative  tribunals  is  to  harmonize  administration 
with  justice.  With  the  increasing  liberality  of  French  in- 
stitutions, the  extended  jurisdiction  of  administrative  courts 
has  emphasized  the  necessity  of  perfecting  them  as  organs 
of  individual  justice.  There  appears  no  reason  to  doubt 
that  in  France  as  much  as  in  Prussia  the  development  of 
administrative  law  will  continue  to  emphasize  the  judicial 
character  of  administrative  tribunals. 

The  limitations  that  are  gradually  being  placed  upon  the 
freedom  of  the  executive  in  making  appointments  are 
slowly  remedying  the  most  serious  weakness  of  the  French 
system.47  There  exists  at  present  such  a  strong  sentiment 
opposed  to  arbitrary  removal  that  the  tenure  of  Councillors 
is  practically  secure.  Members  of  the  Council,  and  this 

48  A  decree  of  the  national  assembly,  Sept.  13,  1870,  giving  the  ordi- 
nary courts  power  to  review  official  acts,  was  interpreted  in  such  a  way 
as  to  make  it  practically  inoperative. 

47  See  law  of  April  13,  1900.  The  changes  in  the  letter  of  the  law 
furnish  in  themselves  but  slight  guarantee  against  executive  interference. 
The  Governmental  interference  in  the  work  of  the  Council  has,  how- 
ever, been  much  less  frequent  in  recent  years  than  under  the  second 
Empire  and  earlier  regimes. 


COMPARISON   WITH   CONTINENTAL  JURISDICTION        139 

applies  to  Commissaries  of  the  government,  are  men  of 
distinguished  legal  training,  who  command  for  the  court 
the  respect  which  is  fitting  a  high  tribunal  of  justice.48 

aThe  reestablishment  of  the  Court  of  Conflicts,  though  its  object  is 
to  protect  the  jurisdiction  of  the  administrative  rather  than  of  the 
civil  courts,  has  had  a  distinctly  legalizing  influence.  The  court  was 
first  established  in  1848,  was  abandoned  in  1852  and  again  established 
in  1872.  Of  the  same  general  effect  was  the  change  which  gave  to  the 
decisions  of  the  Council  of  State  the  force  of  judgments  rather  than  of 
executive  decrees  which  they  had  prior  to  1872.  Since  that  time,  vari- 
ous changes  have  been  introduced  both  in  the  organization  and  in  the 
powers  of  the  court,  which,  though  individually  insignificant,  show  in 
the  aggregate  a  distinct  tendency  toward  separating  the  court  more  and 
more  from  the  active  administration.  Cf.  "  Recueil  de  lois  et  regle- 
ments  concernant  le  Conseil  d'fitat,"  Imprimerie  nationale,  Paris,  1900. 
Cf.  especially  laws  of  July  13,  1879;  Oct.  24  and  26,  1888;  July  22, 
1889;  April  13,  July  17,  and  Aug.  7,  1900.  For  a  brief  concise  dis- 
cussion of  the  evolution  of  the  Council  of  State  in  its  judicial  aspect 
during  the  nineteenth  century,  see  Dicey,  Law  of  the  Constitution, 
6th  ed.,  pp.  492  ff. 

Corresponding  to  the  development  in  the  position  of  the  Council 
itself,  it  is  interesting  to  note  in  the  more  or  less  theoretical  legal 
discussions  a  change  of  attitude  which  perhaps  leads  rather  than  follows 
the  changes  in  the  Council  itself.  De  Tocqueville  regarded  the  estab- 
lishment of  administrative  tribunals  as  only  half  a  reform  since  having 
driven  the  judiciary  from  the  sphere  of  administration,  it  had  left  the 
executive  free  to  interfere  in  the  proper  affairs  of  the  judiciary 
(Ancien  Regime  et  la  Revolution,  7*  ed.,  p.  81,  cited  by  Dicey,  p. 
491).  As  it  was  through  these  tribunals  that  the  administration  oper- 
ated in  judicial  matters,  this  view  would  seem  to  imply  a  practical 
identity  of  the  executive  with  the  administrative  courts.  The  antagon- 
ism of  the  parlements  to  the  executive  and  the  part  they  had  often 
played  in  impeding  reforms  well  accounts  for  this  attitude  and  suggests 
moreover  the  historical  explanation  of  a  separate  system  of  administra- 
tive jurisdiction  (cf.  introduction,  p.  3). 

Later  writings  make  a  greater  distinction,  but  nevertheless  recognize 
that  in  the  first  instance  the  minister  is  judge.  M.  Andre  Lebon,  in 
a  work  published  in  1886,  observes  that  although  the  question  had  been 
much  discussed  this  view  was  generally  held  (Monograph  on  France 
in  Marquardsen's  Handbuch).  (Cf.  Laferriere,  Cours  de  droit  public 
et  administratif,  5*  ed.,  1860,  II.  p.  519;  Ducrocq,  Cours  de  droit  admin- 


I4O        JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

In  America  where  government  prerogatives  have  been 
subordinated  to  the  principle  of  unity  and  universality  of 
law,  the  ultimate  legal  sanction  for  acts  of  administration 
rests  with  the  judicial  branch  of  the  government.  Though 
the  necessity  of  prerogative  is  recognized,  as  it  must  be  in 
all  governments,  it  is  the  work  of  the  courts  to  determine 
according  to  the  constitution  and  laws,  what  those  preroga- 
tives are.  The  danger  to  administrative  efficiency  through 

istratif,  6*  ed.,  1881,  p.  392 ;  Aucoc,  Conference  sur  I' administration  et  le 
droit  administrate,  5*  ed.,  1885,  I.  sec.  332  and  334,  pp.  605-619.) 

As  late  as  1893  M.  Smile  Charrier  shares  this  view  but  calls  atten- 
tion to  the  fact  that  the  ministers  never  have  to  pass  upon  a  case  as 
judge  which  they  have  decided  as  administrators  ("  Theorie  generate  de 
la  juridiction  administrative/'  1893,  p.  219). 

The  latest  writers  generally  go  further  than  this  and  deny  to  min- 
isters the  character  of  judges  altogether  (Hauriou,  5*  ed.,  1903,  p.  812; 
Appleton,  Jean  La  separation  de  I' administration  active  et  de  la  juridic- 
tion administrative,  1898,  p.  3;  Audibert,  J.,  Le  juge  ordinaire  du  con- 
tentieux  administratif,  1898,  especially  p.  24). 

The  change  of  opinion  is  especially  noticeable  in  the  two  editions  of 
M.  E.  Laferriere's  treatise.  In  the  first,  while  denying  that  the  min- 
ister is  the  ordinary  judge  of  first  instance,  he  enumerated  certain  cases 
in  which  he  acts  in  that  capacity ;  in  the  second  he  denies  the  minister 
the  function  of  judge  entirely  (Laferriere,  E.,  Traite  de  la  juridiction 
administrative,  lere  ed.,  1888,  I.  p.  414;  2°  ed.,  1896,  I.  p.  15).  In  the 
second  edition  he  uses  the  following  language :  "  Nous  esperons  etablir 
dans  la  suite  de  cet  ouvrage  que  cette  anomalie  n'existe  pas  dans  notre 
legislation  que  les  attributions  importantes  qui  appartienent  aux  ministres 
en  matiere  contentieuse  ne  sent  pas  des  attributions  d'ordre  juridictionnel 
et  que  celles-ci  resident  tout  entieres  dans  les  tribunaux  administratifs." 

A  question  of  this  kind  may  seem,  it  is  true,  largely  academic  since 
the  powers  of  the  ministers  at  any  given  time  are  essentially  the  same 
whether  regarded  as  administrative  or  jurisdictional.  A  tendency,  how- 
ever, of  authoritative  legal  opinion  towards  a  certain  point  of  view  is 
not  without  significance  since  in  the  long  run  the  evolution  of  legal 
notions  and  the  evolution  of  legal  institutions  tend  to  follow  a  parallel 
course. 


COMPARISON   WITH   CONTINENTAL  JURISDICTION       14! 

a  too  narrow  restriction  of  prerogative,  is  thought  to  be 
compensated  in  our  system  by  a  greater  protection  to  indi- 
vidual rights.  In  practice,  the  courts  on  the  whole  have 
avoided  interference  with  the  necessary  functions  of  the 
political  branches  of  government.49  If  the  courts  show 
a  tolerable  degree  of  adaptability  to  the  social  and  political 
development  of  the  country,  it  is  probable  that  the  executive 
branch  of  our  government  will  continue  to  be  amenable  in 
the  last  analysis  to  the  law  as  interpreted  by  the  regular 
courts. 

As  already  pointed  out,  absence  of  administrative  courts 
does  not  prevent  the  development  of  a  body  of  adminis- 
trative law.  Whether  so  designated  or  not,  administrative 
law  must  constitute  an  essential  part  of  the  political  in- 
stitutions of  every  constitutional  state.  The  absence  of 
special  courts  may  tend  to  increase  rather  than  to  diminish 
the  exercise  of  judicial  functions  by  officers  of  the  active 
administration.  Under  the  Anglo  Saxon  principle  of  in- 
terpretation exclusively  through  the  decision  of  individual 
cases,  it  would  be  impossible  for  our  courts  even  with  every 
facility  of  rapid  and  inexpensive  procedure  to  interpret 
every  law,  or  to  develop  more  than  the  outlines  of  adminis- 
trative jurisprudence.  Tediousness  and  expense  of  judicial 
process  naturally  discourage  litigation  and  throw  a  still 
greater  weight  of  judicial  interpretation  upon  the  officers 
of  the  active  administration. 

Among  the  many  branches  of  government  activity  by 
which  the  law  is  being  developed  and  construed,  there  is 
nowhere  a  more  intimate  connection  with  the  property 
rights  of  individuals  than  in  the  judicial  work  of  the  Comp- 
troller. In  addition  to  a  jurisdiction  on  a  par  with  that 

49  Cf.  decision  of  C.  J.  Marshall,  1829,  Foster,  etc.,  v.  Neilson,  2 
Peters,  253. 


142        JUDICIAL  WORK  OF  COMPTROLLER  OF  TREASURY 

of  the  Continental  courts  of  accounts,  which  the  Comp- 
troller possesses  as  chief  of  the  accounting  department  of 
the  government,  he  exercises  in  part  at  least,  the  jurisdic- 
tion over  private  claims  which  is  lodged  in  France  with 
the  regular  administrative  courts.  Though  his  decisions 
are  final  only  when  the  claimant  chooses  not  to  undertake 
the  burden  of  a  suit  at  law,  the  power  to  sue  is  a  right 
which  in  the  vast  majority  of  cases  it  is  impracticable  to 
exercise.  In  the  actual  operation  of  our  system  the  Comp- 
troller is  usually  the  final  judge. 

From  the  administrative  viewpoint  the  Comptroller  is 
the  officer  to  whom  Congress  looks  for  a  proper  and  judi- 
cious application  of  its  appropriations.  Whether  this  sys- 
tem of  executing  appropriations  results  in  a  larger  measure 
of  justice  to  the  individual  than  the  German  or  the  French, 
it  is  not  here  necessary  to  discuss.  It  is  not  improbable 
that  the  system  of  each  country  is  best  adapted  to  the  pecu- 
liar genius  of  its  institutions.  The  French  system  has  the 
advantage  of  a  comparatively  rapid  and  inexpensive  process 
for  securing  a  decision  from  the  highest  authority  which 
the  Constitution  provides.  A  large  element  in  the  success 
of  the  German  system  is  universal  confidence  in  the  in- 
tegrity of  the  active  administration.  In  Germany  as  here, 
though  practically  all  claims  against  the  state  may  be  ap- 
pealed to  the  civil  courts,  a  vast  majority  of  them  are  ulti- 
mately decided  by  the  higher  administrative  officers. 

The  spread  of  liberal  ideas  and  the  growth  of  democratic 
institutions  in  France  has  tended  to  regulate,  but  in  no 
sense  to  obstruct  the  development  of  administrative  juris- 
prudence. On  the  other  hand,  the  wide  and  important 
jurisdiction  exercised  by  such  officers  as  the  Comptroller, 
developing  as  they  do  a  large  body  of  administrative  law, 
cannot  be  regarded  as  marking  a  tendency  toward  the  estab- 
lishment in  this  country  of  formal  administrative  tribunals. 


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TABLE  OF  AMERICAN  CASES  CITED 

TITLE  PAGB 

American  Insurance  Company  v.  Canter,  i  Peters,  511 9 

Bank  of  Greencastle  v.  U.  S.,  15  Ct.  Cls.,  225 35 

Bean  v.  Patterson,  no  U.  S.,  401 71 

Davis  et  al.  v.  U.  S.,  17  Ct.  Cls.,  215 83 

DeLima  v.  Bidwell,  182  U.  S.,  i 47,    50*1,    51,  55 

Dooley  v.  U.  S.,  183  U.  S.,  151 50 

Downes  v.  Bidwell,  182  U.  S.,  244 55 

Ex  parte  Henry  Ward,  173  U.  S.,  452 70 

Foster  etc.,  v.  Neilson,  2  Peters,  253 141 

Fourteen  Diamond  Rings  Case,  183  U.  S.,  176 54,  55 

Huntington  v.  Worthen,  120  U.  S.,  101 36 

In  Re  Fassett,  142  U.  S.,  479 52 

In  Re  Ross,  140  U.  S.,  475 39 

Insular  Cases 47,    50,    51,  55 

Mann  v.  U.  S.,  3  Ct.  Cls.,  411 81 

Marbury  v.  Madison,  i  Cranch,  180 36 

Martin  v.  U.  S.,  26  Ct.  Cls.,  160 74 

Nielson  v.  Read,  12  Fed.  Rep.,  441 83 

Norton  v.  Shelby  County,  1 1 8  U.  S.,  442 36 

The  People  ex  rel.,  v.  Salomon,  54  111.,  46 36 

Emil  J.  Pepke  v.  U.  S.,  183  U.  S.,  176 54,  55 

Realty  Company  v.  U.  S.,  163  U.  S.,  427 36 

Semple  v.  U.  S.,  24  Ct.  Cls.,  422 60,  61 

Sessums  v.  Botts,  34  Tex.,   335 36 

Smythe  et  al.  etc.,  v.  Titcomb,  31  Me.,  272 36 

United  States  ex  rel.  Miles  Planting  and  Manufacturing  Company 

v.  John  G.  Carlisle  and  Joseph  S.  Miller,  5  D.  C.  App.,  138 34 

United  States  v.  Finnell,  185  U.  S.,  236 74 

United  States  v.  Hill,  120  U.  S.,  169 , 71 

United  States  v.  Jones,  18  Howard,  92 19 

United  States  v.  King,  147  U.  S.,  676 74 

United  States  v.  Payne,  147  U.  S.,  687 74 

United  States  v.  Van  Duzee,  140  U.  S.,  169 74 


147 


INDEX 


Account,  general  state,  in  Prus- 
sia, 114;  general,  of  treasury  dis- 
bursements in  France,  101 

Accountant,  in  Navy  and  in  War 
Departments  created,  15;  see 
also  Accounting  officers 

Accounting,  "  control "  of  in 
France,  91-108;  as  involving  ju- 
dicial activities  on  Continent, 
89;  law  of  1817,  provisions  of, 
16,  17;  "control"  of  in  Prus- 
sia, 108-115;  methods  of,  in 
French  ministries  compared,  99 ; 
officers,  Comptroller  as  adviser 
to,  26,  claims  of,  in  France,  128, 
131,  in  Prussia,  131,  jurisdiction 
of,  over  fees,  71,  Prussian,  right 
of  appeal  of,  131 ;  operation 
claims,  French  and  German  con- 
trasted, 131,  132;  report  on, 
1816,  16;  systems,  as  influenced 
by  national  characteristics,  90 

Accounts,  appellate  jurisdiction  of 
French  Council  o'f  State  over, 
1 06  ;  audit  of  by  Congress,  92  n  f ; 
bureaus  of,  in  French  ministries, 
99-101  ;  changes  in  .  procedure 
on,  1894,  I9  >  constitutional  pro- 
vision for  statement  of,  92  n ; 
"  control  "  of,  by  French  Legis- 
lature, 9.1  ;,  courts  or  chambers 
of,  .in  relation  to  "control,"  89, 
90;  direction  of  public,  in 
France,,  ipp,  101  n;  Director  of 
public,  in  France,  101  ;  duty  of 
Comptroller  to  revise  under  law 
of  1817,  17;  of  local  govern- 
ment units  in  France  centered  in 
Ministry  of  Interior,  100;  ir- 
regularities in,  in  France,  106, 
in  Prussia,  113  «,  in  United 
States,  17  n,  20  «;  French  sys- 
tem of  "control"  over,  91-108; 
ministerial,  commission  for  veri- 
fying in  France,  101,  103,  104; 
provision  for  insuring  prompt 


settlement  of,  20  n ;  revision  of, 
by  French  Court  of  Accounts, 
94,  100,  101,  105-108;  of  land 
office,  settlement  of,  16  n,  20  n ; 
postal,  procedure  on,  20  n ;  of 
Prussian  rural  communes,  113  n  ; 
of  special  services  in  Prussia, 
no  n;  treasury  office  of,  13  n; 
see  also  Court  of 

Administration,  and  administrative 
courts,  views  of  legal  authori- 
ties on,  139  n  f;  bureaucratic, 
relation  of,  to  administrative 
law,  4 ;  control  of,  by  courts  in 
America,  140,  141  ;  federal,  posi- 
tion of  President  in,  7  ;  German, 
influence  of  confidence  in,  142 ; 
influences  affecting  judicial  ac- 
tivities of,  5-12,  141  ;  jurisdic- 
tion of,  in  America,  5  ;  munic- 
ipal, separate  activities  of,  6 ; 
power  of,  in  Germany,  116;  pre- 
rogatives of,  see  Government 
prerogatives ;  of  local  and  pro- 
vincial revenue  in  Prussia,  no; 
of  taxes  in  France,  98  n,  in 
Prussia,  direct,  no,  132,  indi- 
rect, no;  treasury,  in  Prussia, 
109-111 

Administrative,  activities,  vs.  ju- 
dicial, Anglo-Saxon  and  Conti- 
nental concepts  contrasted,  88- 
90,  117,  118;  changes  in  city, 
state  and  nation  compared,  8  n, 

II,     12 

Administrative  court,  Director, 
Prussian,  121  ;  district,  in  Prus- 
sia, 121  «;  organization  of 
French  Council  of  State  as,  123  ; 
Superior  Prussian,  appeal  from 
assessment  before,  132  n,  organi- 
zation of,  124,  125,  procedure  in, 
125,  representation  of,  in  Court 
ox  Conflicts,  135 

Administrative  courts,  in  Baden, 
135  «;  in  Bavaria,  135  n; 


148 


INDEX 


I49 


French,  establishment  of,  in  re- 
lation to  administration,  3,  forms 
of  recourse  to,  127,  inferior,  ap- 
pellate jurisdiction  of  Council 
of  State  over,  128,  influence  of 
rapid  procedure  in,  142,  judicial 
character  of,  138,  jurisdiction  of, 
119,  126,  127,  lower,  executive 
control  over,  120 ;  German,  in- 
fluence of  Imperial  law  on  con- 
flicts with  civil  courts,  134,  juris- 
diction of,  136,  jurisdiction 
limited  to  statutory  provisions, 
134  n,  raison  d'etre  of,  4  n,  in 
relation  to  reforms  of  Stein  and 
Hardenberg,  136;  in  Hesse,  135 
n;  jurisdiction  of,  in  France 
and  Prussia  compared,  119,  126; 
Prussian,  complaints  before, 
125,  district,  121  n,  lower,  120, 
as  model  for  other  states,  135, 
136,  procedure  before,  125,  126  ; 
relation  of,  to  administration, 
views  of  legal  authorities,  139 
n  f;  in  Saxony,  135  n;  in  Wiir- 
temberg,  135  n 

Administrative,  decentralization  in 
Germany,  effect  of,  on  public  ac- 
counts, 1 08;  duties  of  first 
Comptroller,  proposal  to  relieve, 
1 8  ;  duties  of  Comptroller  trans- 
ferred to  auditors,  1894,  19; 
functions  of  the  Interstate  Com- 
merce Commission,  9  n ;  griev- 
ances, redress  for,  in  England 
and  America,  5 

Administrative  jurisdiction,  over 
claims  against  the  state,  119; 
on  the  Continent,  raison  d'etre 
of,  4;  in  France  and  Germany 
contrasted,  136,  137;  as  influ- 
enced by  growth  of  federal  ac- 
tivity, 8-1  o;  Interstate  Com- 
merce Commission  as  example, 
9  n ;  in  Prussia,  136,  137 

Administrative  jurisprudence,  in 
France,  2-4,  88,  89,  117-124, 
126-131,  136-142;  in  Germany, 
4  n,  88,  .89,  117-122,  124-126? 
131-138,  142 ;  in  France  and 
Prussia  compared,  122,  126; 
German,  effect  of  Imperial  law 


on,  135,  136;  in  Germany, 
French  influence  on,  135,  136 

Administrative  law,  American,  im- 
portance of,  12;  relation  of 
Comptroller  to,  12;  and  civil 
service,  6 ;  development  of,  in 
office  of  Comptroller,  37,  141, 
142 ;  federal  conditions  favor- 
ing, 7,  8;  general,  141,  142; 
local,  6 ;  under  Philippine  Com- 
mission, 9;  in  States,  5,  12  ;  and 
Anglo-Saxon  concepts,  i,  and 
principles  of  interpretation,  141  ; 
on  the  Continent,  Lowell's  dis- 
cussion of,  136  n  f ,  as  contrasted 
with  equity,  137  n;  Dicey's  dis- 
cussion of ,  i  n  f ;  English,  i  n  f  ; 
French  experience  before  estab- 
lishment of  administrative  tri- 
bunals, 3  ;  French,  origin  of,  2 ; 
German,  civil  jurisdiction  over, 
4n,  126,  131-138,  142;  recency 
of  interest  in,  in  the  United 
States,  i  n 

Administrative,  prerogative,  see 
Government  prerogatives ;  pro- 
cedure, on  accounts,  changes  in, 
1894,  19,  in  America,  5,  on  the 
Continent,  4,  in  England,  5 ; 
supremacy  in  France,  1 38  ;  trib- 
unals, judicial  character  of,  in 
France  and  Prussia,  138,  views 
of  De  Tocqueville  on  estab- 
lishment of,  in  France,  139  n 

Advances  to  disbursing  officers  in 
excess  of  bond,  18 

Anglo-Saxon,  concepts  of  admin- 
istrative vs.  judicial  activities, 
contrasted  with  Continental,  88- 
90,  117,  118;  jurisprudence, 
practice  of  deciding  particular 
cases,  30 ;  justice  and  legal 
practice  in  relation  to  Continen- 
tal institutions,  1-5,  141 

Annual  appropriations,  41,  42 

Appeal,  from  auditor's  findings, 
20 ;  Prussian  commission  of, 
132  n 

Appeals,  before  departmental  Di- 
rector of  direct  taxes  in  France, 
128  n;  Circuit  Court  of,  32 ; 
from  settlement  of  private 
claims  on  Continent,  89 ;  in 


ISO 


INDEX 


France,  127-131  ;  in  Prussia, 
I3I-I35. < 

Appellate  jurisdiction,  of  Comp- 
troller, 10,  20;  of  Council  of 
State,  French,  127,  128 

Appointive  officers  in  state  govern- 
ments, increase  in  number  of,  5 

Appointment,  influence  of  Presi- 
dent's power  of,  7 ;  effect  of 
failure  of  Senate  to  confirm,  68- 
70 ;  see  also,  Comptroller,  Re- 
cess appointment 

Appropriation,  acts,  Comptroller  as 
interpreter  of,  38-48 ;  bills, 
power  of  Congressmen  to  intro- 
duce, 38,  power  of  Senate  to 
amend,  38 ;  for  education,  etc., 
in  Porto  Rico,  47 ;  laws,  com- 
parison of  in  United  States  and 
France,  97,  98 

Appropriations,  annual,  41,  42; 
balances  from,  provisions  for 
covering  into  treasury,  43 ; 
Comptroller  as  executor  of,  142  ; 
constitutional  provision  on,  39  ; 
contingent,  44  ;  cumulative,  46  ; 
Division  of  Warrants,  Estimates 
and,  20  n ;  deficiency,  45  n ; 
emergency,  46 ;  equity  as  basis 
of,  36 ;  executive  discretion 
over,  46,  47 ;  existence  of,  de- 
termined by  Comptroller,  39 ; 
House  committees  charged  with, 
38 ;  incidental,  44 ;  items  dupli- 
cated in  different  acts,  44-46 ; 
kinds  of,  41-46 ;  language  by 
which  constituted,  39,  40 ;  let- 
ter of  John  Sherman  regarding, 
43  n ;  limitation  of  departmental 
expenditures  by,  43  n  ;  necessary 
incidents  of,  40,  41,  44 ;  neces- 
sity for  expenditure  as  affecting 
availability  of,  40 ;  payments  in 
advance  of,  in  French  colonies, 
96  n;  permanent  annual,  41,  42  ; 
permanent  specific,  41,  42,  43 ; 
for  public  works,  42 ;  special 
Congressional  committees  in 
charge  of,  38  n  •  specific,  mis- 
cellaneous items  in,  44 ;  strict 
interpretation  of.  43,  44,  46 ; 
tinder  unconstitutional  acts,  34- 
36 


Army,  collection  of  customs  by, 
50 ;  disbursement  cases,  59-67 

Assistant  Comptroller  created,  19 

Attorney  General,  French,  duty  of, 
concerning  finance,  105  n; 
United  States,  Comptroller's  re- 
lation to,  n,  24-29;  jurisdiction 
of  in  relation  to  that  of  Comp- 
troller under  law  of  1894,  26 ; 
opinion  of,  relating  to  treasury 
operations,  25  ;  status  of  opin- 
ions of,  on  expenditure,  28 

Audit,  of  accounts,  by  Congress, 
92  n  f;  systems  of  in  France 
and  Germany  compared,  116- 
118 

Auditor,  abolition  of  office,  1787, 
14  n;  for  postal  revenues  re- 
tained in  treasury,  17  n 

Auditor  General,  prior  to  resolu- 
tion of  1778,  13  n 

Auditors,  designations  of  changed, 
1894,  19 ;  for  executive  depart- 
ments created,  1894,  19  n;  ap- 
peal from,  20  ;  findings  of,  status 
under  law  of  1894,  19 ;  juris- 
diction of,  29,  30  ;  relation  of  to 
Comptroller,  20,  21  ;  under  reso- 
lution, 1778  and  1781,  13  n 

Avery,  Chief  Justice,  opinion  in 
bounty  case,  35  n 

Baden,  administrative  courts  in, 
135  n;  organs  of  "control"  in, 
116 

Balances,  from  postal  revenue,  re- 
port of,  to  Postmaster  General, 
20  n ;  provisions  for  carrying 
to  surplus  fund,  43  « ;  from  spe- 
cific appropriations,  provisions 
for  covering  into  treasury,  43 ; 
see  also  checks  and  balances 

Bates,  Attorney  General,  opinion 
regarding  advice  to  accounting 
officers,  25  n 

Bavaria,  administrative  courts  in, 
135  «J  organs  of  "control"  in, 
115;  Supreme  Court  of  Ac- 
counts in,  115  n 

Board  of  General  Appraisers,  re- 
view of  work  of,  by  Supreme 
Court,  52 

Boards,,  as    instruments   for   exer- 


INDEX 


cising  regulative  functions ;  see 
Commissions 

Bonds,  of  disbursing  officers,  ad- 
vances in  excess  of,  18 

Bookkeeping  and  Warrants,  divis- 
ion of,  19  n  f 

Bounties,  decisions  of  Comp- 
troller concerning,  65-67 

Bounty,  on  sugar,  34-37 

Bowler,  Comptroller,  action  in 
Sugar  Bounty  Case,  34-37 ;  de- 
cision of,  concerning  permanent 
specific  appropriations,  43,  con- 
cerning recess  appointments,  68, 
70 ;  opinion  of,  concerning  lan- 
guage constituting  an  appropria- 
tion, 39,  40 

Broker,  definition  of,  by  Comp- 
troller, 56 

Brokers,  tax  on,  55,  56 

Budget,  Comptroller's  relation  to,  as 
compared  with  French  and  Ger- 
man practice,  89  ;  "  control,"  on 
Continent  compared  with  Amer- 
ican practice,  89-91,  in  France, 
89,  91-108,  in  Germany,  108- 
ii  6,  in  Prussia,  108-115;  pow- 
ers of  Mayor  of  New  York  in  re- 
lation to,  7  n ;  French,  in  rela- 
tion to  legislature,  91,  94,  95, 
1 08,  transfers  in,  96  ;  practice  in 
the  United  States,  Congress  in 
relation  to,  38,  92  n  f,  97,  con- 
stitutional provisions  concern- 
ing, 92  n  f,  effect  of,  on  Comp- 
troller's judicial  work,  38;  year, 
French,  indemnity  law  in  rela- 
tion to,  92,  Prussian,  113  n; 
see  also  Exercice 

Bundesrat,  German,  consent  of,  to 
hearing  of  jurisdictional  dis- 
pute by  Imperial  Court,  134;  re- 
port of  Court  of  Accounts  to, 
115;  see  also  Legislature 

Bureau  of  Public  Accounts,  French, 
101  n 

Bureaucratic  administration,  rela- 
tion of  to  administrative  law,  4 

Bureaus  of  accounts  in  French 
ministries,  duties  of,  99,  100 

Cases,  table  of  American,  cited, 
143 


Cashier,  central  paying,  French,  99 

Census,  Director  of,  power  to 
authorize  expenditure,  28 ;  of 
executive  departments  by  Dock- 
ery  Commission,  18 

Central,  "  control "  of  the  public 
treasury,  French,  100,  101  ;  dis- 
trict treasury,  Prussian,  1 1 1  n  ; 
paying  cashier,  French,  99 

Chamber  of  Accounts,  French,  as 
model  for  Court  of  Accounts, 
104;  Prussian,  analogy  to 
French  Court  of  Accounts,  in, 
112  n;  audits  of,  113  n;  author- 
ity of,  over  disbursing  officials, 
114,  115;  as  Court  of  Accounts 
for  German  Empire,  115;  inde- 
pendence of,  113  n;  influence  of, 
compared  with  French  Court  of 
Accounts  and  Comptroller,  117, 
118;  jurisdiction  of,  in  n,  113- 
115;  organization  of,  in,  112 
n;  origin  of,  112  n;  procedure 
in,  H2,  113  n;  relation  of,  to 
budget  law,  113;  reports  of,  114 

Chambers  of  Accounts,  under  reso- 
lutions Continental  Congress, 
1778  and  1781,  13  n;  in  relation 
to  Continental  control  systems, 
89,  90 ;  in  smaller  German 
states,  115,  116 

Chambers,  French  Legislative,  see 
Legislature 

Chancellor,  German  Imperial,  in- 
fluence of,  over  Prussian  finance, 
no  n 

Charrier,  E.,  views  on  relation  of 
French  ministers  to  administra- 
tive courts,  140  n 

Checks,  and  balances,  principle  of, 
in  the  Federal  Government,  23 
n;  on  treasury  operations,  see 
Control 

Chinese  exclusion  act,  48 

Circle,  Prussian,  109  n 

Circle  committee,  Prussian,  or- 
ganization of,  120-121 

Circuit  Court  of  Appeals,  32 

Circuit  Courts,  federal,  power  to 
sue  in,  n,  31,  32 

City,  see  Municipal 

Civil  courts,  French,  jurisdiction 
of,  126,  127,  limitations  upon 


152 


INDEX 


jurisdiction  of,  138;  German, 
influence  of  Imperial  law  on  re- 
lation of,  to  administrative 
courts,  134;  jurisdiction  of, 
over  claims  against  the  state, 
119;  jurisdiction  of,  in  France 
and  Germany  contrasted,  136, 
137;  Prussian,  influence  of,  on 
executive,  137,  jurisdiction  of, 
I37,  jurisdiction  of,  over  ap- 
peals of  accounting  officers,  131, 
jurisdiction  of,  over  claims 
against  the  state,  132,  133 

Civil  disbursement  cases,  59,  67- 
80 

Civil  law,  in  relation  to  adminis- 
trative law,  136  n  f;  see  also 
Administrative  law,  and  Ad- 
ministrative courts 

Civil  service,  and  administrative 
law,  in  the  United  States,  6 ; 
Comptroller's  decisions  concern- 
ing, 59,  67-80 

Claims,  from  accounting  opera- 
tions, French  and  Prussian  prac- 
tice contrasted,  131,  132;  ad- 
ministrative and  civil  jurisdic- 
tion over,  in  Continental  coun- 
tries, 119;  adjudication  of,  in 
France,  127-131,  in  Prussia, 
131-135  >  appeals  from  settle- 
ment of,  by  administrative  offi- 
cers, on  Continent,  89 ;  Court  of, 
see  Court  of  Claims ;  against 
Fiskus  in  Prussia,  133,  134; 
against  French  Government,  exe- 
cution of,  131  «;  against  French 
government  officials,  131  n;  jur- 
isdiction of  French  controller  of 
public  treasury  over,  100  n  f; 
kinds  of  in  France,  128-131  ; 
against  Prussian  Government, 
execution  of,  132;  jurisdiction 
of  civil  courts  over,  132,  133; 
pension,  duties  of  French  Fi- 
nance Minister  concerning,  130, 
131 ;  simplicity  of  procedure  on, 
in  France,  n,  142 

Claims  against  the  United  States, 
in  civil  service,  67-80,  for  fees, 
71-76,  for  mileage  in  contested 
elections,  76,  77,  for  salary 
under  recess  appointment,  68- 


70,  for  travelling  expenses,  77- 
80 ;  Comptroller's  jurisdiction 
over,  n,  31-37,  89,  compared 
with  Continental  practice,  119- 
142  ;  under  contracts,  with  gov- 
ernment, 81-83,  with  Indians, 
84-87  ;  court  decisions  concern- 
ing, uncertainty  of,  under  laws 
of  1887  and  1891,  31,  32;  for 
drawbacks,  54,  55 ;  in  military 
service,  59-67,  for  bounty,  65- 
67,  for  extra  pay,  59-61,  for 
mileage  of  officers  on  travel,  62— 
65,  for  pensions,  65,  67  n',  for 
refund  of  taxes,  50-58 ;  under 
sugar  bounty  provisions,  34-37 

Clerks  of  Courts,  fees  of,  71,  73- 
76 

Cleveland,  President,  approval  of 
Dockery  law  by,  19  n 

Collector  of  customs,  term  denned, 
50 

Collectors,  in  France,  99 

Colonies,  French,  appellate  juris- 
diction of  Council  of  State  over 
administrative  courts  of,  128; 
payments  in  advance  of  appro- 
priations in,  96  n 

Columbian  Exposition  Act,  48 

Commissary  of  the  Government, 
in  France,  functions  of,  124 

Commission,  Government  in  cities, 
7  n ;  of  Appeal,  Prussian,  132  n ; 
Interstate  Commerce,  9  n  ;  New 
York  Public  Service,  6n ;  for 
verifying  ministerial  accounts, 
in  France,  101,  103,  104;  Wis- 
consin Railway,  6n 

Commissions  and  boards  as  in- 
struments for  exercising  regula- 
tive functions,  in  relation  to  ad- 
ministrative law,  zn,  5 

Commissioner,  of  Customs,  estab- 
lished, 1849,  1 8,  abolished,  19; 
of  Indian  affairs,  relation  of 
Comptroller  to,  86,  87 ;  of  In- 
ternal Revenue,  Comptroller's 
jurisdiction  over  findings  of, 
35  n,  57;  of  general  land  office, 
land  revenues  reported  to,  20  n, 
settlement  of  accounts  of,  16  n 

Committee,  on  organization,  con- 
duct and  expenditure  of  the  exe- 


INDEX 


153 


cutive  departments,  Senate,  93 
n ;  on  retrenchment,  recommen- 
dations of,  1842,  17;  for  super- 
vising treasury,  13  n ;  on  Ways 
and  Means,  finance  power  of,  23 

Committees,  charged  with  prepar- 
ing appropriation  bills,  House, 
38 ;  on  public  expenditure,  Con- 
gressional, 92  n  f 

Common  law,  judicial  review  of 
executive  acts  under,  4 ;  com- 
pared with  equity  and  admin- 
istrative law,  137  n 

Commonwealth,   see   State. 

Commune,  French,  councils  of, 
1 20  n,  disbursements  in,  98  n; 
Prussian,  109  n 

Complaints  before  Prussian  ad- 
ministrative courts,  125 

Comptroller,  administrative  ac- 
tivities of,  compared  to  Conti- 
nental practice,  88,  89 ;  admin- 
istrative duties  of,  transferred 
to  auditors,  1894,  19 ;  appoint- 
ment of,  10,  23,  24;  argument 
of,  in  Porto  Rican  cases,  54  n ; 
Assistant,  created,  19  ;  authority 
of,  as  influenced  by  dignity  of 
position,  24 ;  decisions  of,  see 
comptroller's  decisions  ;  director 
of  treasury  organization,  10,  89  ; 
duties  of,  James  Madison's  views 
on,  14 ;  First,  proposal  to  re- 
lieve of  administrative  duties, 
1 8 ;  First  and  Second,  offices 
abolished  1894,  19;  functions  of, 
contrasted  with  Continental 
practice,  n,  23,  88-91,  97,  102., 
117,  118,  141,  142;  independence 
of,  24,  37 

Comptroller,  judicial  functions  of, 
recognized  prior  to  1789,  14, 
sanctioned  1894,  10,  19;  judi- 
cial work  of,  as  influenced  by 
American  budget  practice,  38, 
as  influenced  by  Dockery  Act, 
21,  24.  as  influenced  by  ex- 
penses of  judicial  procedure,  n, 
141,  Insular  cases  as  example, 
50-55,  origin,  13,  as  promoting 
development  of  administrative 
law,  it,  12,  37,  87,  141,  142,  since 
1789,  15;  jurisdiction  of,  ad- 


visory, 21,  26-30,  appellate,  10, 
20,  general,  20-37,  limited  to 
statutory  provision,  30,  over 
appropriation  acts,  38-48,  over 
claims  against  the  state,  n,  31, 
89,  142,  see  also  Claims  against 
the  United  States,  over  con- 
tracts with  Government,  81-83, 
over  contracts  with  the  Indians, 
84-87,  over  disbursements  for 
services  to  the  Government,  59- 
80,  over  fees,  71-76,  over  pay- 
ments to  government  officers, 
significance  of,  80,  over  revenue 
cases,  49-58,  significance  of,  49, 
58,  views  of  Attorney  General 
Olney,  25,  26,  27  n ;  see  also 
Comptroller's  decisions 

Comptroller,  office,  abolished  1787, 
14  n;  created,  13;  origin  and 
history  of,  13-21  ;  reorganized 
by  Dockery  Act,  1894,  19-21  ; 
position  of,  under  Act  of  1781, 
13  n;  power  of,  to  question  con- 
stitutionality of  acts,  34-37 ; 
prerogatives  of,  prior  to  law  of 
July  1894,  26;  relation  of,  to 
Attorney  General,  n,  24-29,  to 
auditors,  20,  21,  to  budget  as 
compared  with  French  and  Ger- 
man practice,  89,  to  Commis- 
sioner of  Indian  Affairs,  86,  87, 
to  Commissioner  of  Internal 
Revenue,  35  n,  57,  to  Congress, 
97,  to  courts,  n,  30-37,  47,  59, 
80,  142,  to  Secretary  of  the 
Treasury,  10,  22-24,  27»  views 
of  Senator  Davis  on,  23  n ;  re- 
ports of,  24 ;  revision  of  all  ac- 
counts by,  prior  to  1894,  17,  18  ; 
tenure  of,  proposal  to  limit  exe- 
cutive control  over,  1789,  14 

Comptroller's  decisions,  binding 
on  executive  branch  of  Govern- 
ment, 21,  22;  nullifying  object 
of  a  law,  39,  40  ;  in  relation  to 
decisions  of  courts,  n,  30-37, 
47,  59,  80,  142 ;  on  appropria- 
tions, 38-48  ;  on  army  and  navy 
disbursements,  59—67  ;  on  boun- 
ties, 65-67 ;  on  civil  service  dis- 
bursements, 67-80 }  on  Cuban 
expedition  appropriation,  48  ;  on 


54 


INDEX 


damages  for  delay  in  completing 
contracts,  82  ;  on  drawbacks,  55  ; 
on  fees,  70-76 ;  on  fiscal  serv- 
ice contracts,  83  n  f;  on  lan- 
guage constituting  appropria- 
tion, 39,  40 ;  on  laws  removing 
desertion  charges,  65-67 ;  on 
mileage,  62-65,  76,  77 ;  on  pen- 
sions, 65,  67  n ;  on  public  reve- 
nues, 49-58  ;  on  recess  appoint- 
ments, 68-70 ;  on  per  diem  sub- 
sistence allowances,  77-80 ;  on 
sugar  bounty  law,  34-37 ;  on 
tenure  of  federal  judges,  70 ;  on 
transportation  contracts,  83  n ; 
on  travelling  expenses,  77-80 

Conflicts,  between  civil  and  ad- 
ministrative courts  in  Germany, 
influence  of  Imperial  law  on, 
134;  see  also  Court  of  Con- 
flicts 

Congress,  audit  of  accounts  by,  92 
n  f;  committees  of,  charged 
with  preparing  appropriation 
bills,  38,  on  public  expendi- 
ture, 92  n  f ;  desertion  charges 
removed  by,  65-67 ;  power  of,  to 
make  appropriations  based  on 
equity,  36 ;  relation  of  to  budget, 
38,  92  n  f ,  97  ;  relation  of  Comp- 
troller to,  97,  142 

Congressional  Courts;  see  Terri- 
torial Courts 

Constitution,  organization  of  treas- 
ury under,  14;  provision  of,  on 
appropriations,  39,  for  state- 
ment of  accounts,  92  n,  on  ten- 
ure of  judges,  exemption  of  ter- 
ritorial courts,  9  n ;  relation  of, 
to  recess  appointments,  70 

Constutionality,  right  of  Comp- 
troller to  question,  34-37 ;  see 
Unconstitutional 

Consular,  fees,  71,  73 ;  Service, 
judicial  functions  in,  10 

Continental,  concepts  of  adminis- 
trative vs.  judicial  activities, 
contrasted  with  Anglo-Saxon, 
88-90,  117-118;  institutions  in 
relation  to  Anglo-Saxon  justice 
and  legal  practice,  1-5,  141  ;  see 
also  particular  countries  and 
topics 


Contingent  appropriations,  44 

Contracts,  claims  under,  in  France, 
128,  129  ;  damages  for  delays  in, 
82 ;  of  departments  and  com- 
munes in  France,  jurisdiction  of 
civil  courts  over,  129  n;  with 
French  Government,  enforceable 
for  cash  indemnity,  129 ;  with 
Indians,  84-87;  with  Prussian 
Fiskus,  claims  under,  133,  134; 
for  transportation,  83  n;  with 
the  United  States  Government, 
81-83 

"  Control,"  of  budget,  difficulty  of 
comparison  between  American 
and  Continental  systems,  90  ;  in 
France,  89,  91-108  ;  in  Germany, 
108-116;  in  Prussia,  108-115; 
central,  of  the  public  treasury, 
in  France,  100,  101  ;  Continental 
meaning  of  term,  89  n ;  of  ex- 
penditure in  French  Ministry  of 
Interior,  difficulty  of,  96 ;  or- 
gans in  smaller  German  states, 
115,  116;  systems,  Continental, 
courts  or  chambers  of  accounts 
in  relation  to,  89,  90 ;  systems 
of  France  and  Germany  com- 
pared with  Comptroller,  117, 
118 

Controller,  of  expenditures  incur- 
red, French,  97  n;  of  public 
treasury,  French,  jurisdiction  of, 
over  claims,  100  n  f 

Council  of  Public  Instruction,  ju- 
risdiction of  Council  of  State 
over,  127  n 

Council  of  State,  French,  advisory 
function  of,  122  n;  appeals  to, 
from  other  administrative  courts, 
127,  128,  from  Finance  Minister 
and  Court  of  Accounts,  131 ;  de- 
cisions of,  provisions  for  recall, 
128  n;  governmental  interfer- 
ence with,  138 ;  judicial  status 
of,  139,  140;  jurisdiction  of, 
127-131,  over  elections,  127,  in 
case  of  excess  of  power,  127, 
over  pension  claims,  130,  over 
police  matters,  127;  organiza- 
tion of,  122,  123  ;  power  of,  to 
revise  accounts,  106  ;  procedure 
before,  123,  124;  reconstruction 


INDEX 


155 


of,  1806,  3  n;  relation  of,  to 
jurisdictional  disputes,  126,  128; 
review  of  acts  of  special  com- 
missions by,  127  n  f ;  status  of, 
under  different  regimes,  3  n 

Councillors  of  State,  French,  ap- 
pointment of,  122,  138;  assign- 
ment of,  to  sections,  122;  ten- 
ure of,  138 

Court  of  Accounts,  French,  anal- 
ogy to  Prussian  Chamber  of  Ac- 
counts, in,  112  n;  annual  re- 
ports of,  107;  appeal  from  de- 
cisions of,  128,  131 ;  "  control  " 
functions  of,  91,  104-108;  "con- 
trol "  of,  over  incurring  of  ex- 
penditures, 107-108 ;  decrees  of, 
1 06;  creation  of,  by  Napoleon 
I,  104;  influence  of,  compared 
with  Prussian  Chamber  of  Ac- 
counts and  Comptroller,  117, 
118;  jurisdiction  of,  104-108; 
judicial  status  of,  117,  118;  or- 
ganization of,  104  n;  procedure 
in,  104  n,  105,  106;  revision  of 
accounts  by,  94,  100,  101,  105- 
108  ;  German  Imperial,  115  ;  Su- 
preme, in  Bavaria,  115  n;  see 
also  Courts  of  Accounts 

Court  of  Cassation,  French,  rep- 
resentation of,  in  Court  of  Con- 
flicts, 126;  see  also  Courts  of 
Cassation 

Court  of  Claims,  circuit  and  dis- 
trict courts  given  parallel  juris- 
diction with,  31  ;  decrees  of, 
made  executory  in  its  own  name, 
31  ;  decisions  concerning  extra 
pay,  60,  in  Realty  Company 
Case,  36  ;  origin  and  history  of, 
30,  31  ;  Comptroller's  jurisdic- 
tion in  relation  to,  n,  33;  juris- 
diction of,  over  Porto  Rican 
customs  cases,  51 

Court  of  Conflicts,  French,  juris- 
diction of,  over  competency  of 
courts,  126  ;  organization  of,  126  ; 
regulation  of,  concerning  injury 
claims,  129  n;  relation  of,  to  ad- 
ministrative justice,  139  n;  in 
Hesse,  135  n;  Prussian,  reor- 
ganization of,  1879,  135  ;  see 
also  Courts  of  Conflict 


Courts,  American,  attitude  of 
toward  political  branches  of 
Government,  141  ;  powers  of 
commissions  upheld  by,  6  n ; 
Comptroller's  jurisdiction  in  re- 
lation to,  n,  30-37,  47,  59,  80, 
142 ;  control  of  administration 
by,  140,  141 

Courts  of  Accounts,  Continental, 
Comptroller's  work  contrasted 
with,  90,  91,  117,  118,  141,  142; 
in  relation  to  "  control "  sys- 
tems, 89,  90 

Courts  of  Cassation,  French,  ad- 
ministrative courts  as,  127  n 

Courts  of  Conflict,  in  German 
states,  134,  135;  German,  Im- 
perial law  concerning,  135 

Courts,  see  also  Administrative, 
Circuit,  Civil,  District,  Imperial, 
Supreme,  Territorial 

Credits,  overrunning  of,  in  France, 
91-97 

Cuban,  expedition  appropriation, 
48 

Cumulative  appropriations,  46 

Currency,  judicial  functions  per- 
taining to,  10 

Customs,  appropriations  for  col- 
lecting, 42  ;  collector  of,  defined, 
50 ;  duties,  Porto  Rican,  collec- 
tion of,  50-53 ;  service,  judi- 
cial functions  in,  10 

Damages,  liquidated,  principle  of 
interpreting,  82,  83 

Davis,  Senator  Jefferson,  views  on 
Comptroller's  relation  to  Sec- 
retary of  the  Treasury,  23  n 

Decisions  of  Comptroller ;  see 
Comptroller's  decisions 

Defalcations,  17 

Deficiency  appropriations,  45  n 

Deficits,  accounting,  provisions  for 
recovering  in  Prussia,  109  n 

Departmental  expenditures ;  see 
Expenditures 

Desertion  charges,  Comptroller's 
interpretation  of  laws  removing, 
65-67 

DeTocqueville,  views  of,  on  estab- 
lishment of  administrative  trib- 
unals in  France,  139  n 


1 56 


INDEX 


Dicey,  A.  V.,  explanation  of  Eng- 
lish use  of  term  administrative 
law,  i  n 

Direction,  general,  of  public  ac- 
counts in  France,  duties  of,  100, 
101 

Director,  of  direct  taxes,  depart- 
mental in  France,  appeals  be- 
fore, 128  n;  of  the  general 
movement  of  funds  in  France, 
duties  of,  100-102;  of  public  ac- 
counts, French,  101 

Direct  taxes,  administration  of,  in 
France,  98,  in  Prussia,  no,  132; 
appeals  concerning,  in  France, 
128  n 

Disbursement  cases,  army  and 
navy,  59-67 ;  civil,  59,  67-80 

Disbursements,  in  France,  general 
account  of  treasury,  101  ;  pro- 
cedure on,  in  ministries,  99-101  ; 
progress  in  regulation  of,  95-98 

Disbursing  officers,  in  France,  98, 
99 ;  in  United  States,  advances 
to,  in  excess  of  bonds,  18;  sys- 
tem of  paying  through,  estab- 
lished, 17;  Comptroller  as  ad- 
viser to,  21,  26 

District,  administrative  court, 
Prussian,  121  n\  of  Columbia, 
interpretation  of  appropriations 
far,  41  ;  committees,  Prussian, 
organization  of,  121  ;  courts, 
federal,  power  to  sue  in,  n,  31, 
32 ;  President,  Prussian,  121  ; 
treasuries  in  Prussia,  inn 

Dockery,  Commission,  18 ;  Law, 
1894,  19-21,  effect  of  reorgani- 
zation of  Comptroller's  office  by, 
24 

Drawbacks,  legal  nature  of,  54,  55 

Droit  administratif,  content  of 
term  discussed,  2n 

Elections,    jurisdiction    of    French 

Council  of  State  over,  127 
Emergency  appropriations,  46 
Eminent    domain    proceedings,    in 

Prussia,  133  n 
Emperor,  German,  report  of  Court 

of  Accounts  to,  115 
Employees,  government,  nature  of 

legal  questions  concerning,  67  n 


England,  concept  of  administra- 
tive law  in,  i  n ;  redress  for  ad- 
ministrative grievances  in,  5 ; 
see  also  Anglo-Saxon 

English  legal  ideas ;  see  Anglo- 
Saxon 

Equity,  as  contrasted  with  ad- 
ministrative law,  137  n ',  power 
of  Congress  to  make  appropria- 
tions based  on,  36 

Estimates,  Division  of  Warrants, 
estimates  and  appropriations, 
20  n 

Ewart,  Hamilton  G.,  recess  ap- 
pointment of,  69,  70 

Excess  of  power,  recourse  to 
French  Council  of  State  for, 
127 

Executive,  acts,  limits  to  judicial 
review  of,  under  common  law, 
4 ;  branch  of  government,  Comp- 
troller's decisions  binding  on, 
21,  22;  departments,  auditors 
for  created,  1894,  19  n,  census 
of,  by  Dockery  Commission,  18, 
Comptroller  as  adviser  to,  21. 
26-30,  Congressional  Commit- 
tees on  expenditures  of,  92 
n  f ;  supremacy  in  France,  in- 
fluence of,  on  relation  of  civil  to 
administrative  courts,  138 

Exercice,  meaning  of  term,  91  n; 
see  also  Budget  Year 

Expenditures,  departmental  limited 
to  appropriations,  43  n ;  power 
of  director  of  census  to  author- 
ize, 28 ;  in  French  Ministry  of 
Interior,  difficulty  of  controlling, 
96;  regulation  of,  in  France, 

93-99 
Expense    allowance,    decisions    of 

Comptroller  concerning,  77-80 
"  Exporter  Case,"  55 

Federal,  activity,  influence  of 
growth  of,  on  administrative 
law,  8-10 ;  administrative  law, 
see  Administrative  Law,  Amer- 
ican ;  Government,  administra- 
tive activities  of,  compared  with 
city  and  state,  8  n 

Fee,  definition  of,  71 

Fees,    Clerk   of   Court,    71,   73-76  ; 


INDEX 


157 


Consular,  71,  73;  decisions  of 
Comptroller  concerning,  70-76 ; 
difficulty  in  securing  proper  ac- 
counting of,  71 ;  elimination  of, 
as  method  of  payment,  71  ;  juris- 
diction of  accounting  officers 
over,  71  ;  illegal  appropriation 
of,  71,  72;  improper  claims  for> 
73-76 ;  legal  principles  concern- 
ing, 72 ;  provisions  of  law  of 
June  28,  1902,  concerning,  71 

Fermented  liquors,  tax  on,  Law  of 
June  13,  1898,  57 

Finance,  administration,  collapse 
of  during  War  of  1812,  16; 
Prussian,  influence  of  Imperial 
Chancellor  over,  no  n;  see  also 
Inspection,  Inspector,  Minister 
of  Finance,  Ministry  of  Finance, 
Superintendent  of  Finance 

Financial  Controversies,  see 
Claims 

First  Comptroller,  see  Comptroller, 
First 

Fiscal  service  contracts,  83  n  f 

Fiskus,  Prussian,   133,   134 

Foraker  Act,  51 

Foreign  Affairs,  appropriations  for, 
38  n  ;  French  Ministry  of,  super- 
vision of  Accounts  in,  100 

Forest  service,  Prussian,  accounts 
of,  no  n 

Foster,  Charles,  Secretary  of 
Treasury,  18 

France,  administrative  jurispru- 
dence in,  2-4,  88,  89,  117-124, 
126-131,  136-142;  treasury  op- 
erations in,  91-108;  see  also 
particular  topics. 

French  spoliation  claims,  48 

Freund,  Ernst,  i  n 

General  Inspection  of  Finance ; 
see  Inspection 

German  Emperor,  report  of  Court 
of  Accounts  to,  115;  see  also 
Imperial 

Germany,  administrative  jurispru- 
dence in,  4  n,  88,  89,  117-122, 
124-126,  131-138,  142;  treasury 
operations  in,  108-116;  see  also 
particular  topics 

Goodnow,  F.  W.,  i  n 


Government,  district,  Prussian, 
109  n;  officers,  payments  to, 
significance  of  Comptroller's 
jurisdiction  over,  80 ;  preroga- 
tive, 3,  4,  5,  "9,  129,  137,  138, 
140,  141 

Governmental  law,  Dicey's  refer- 
ence to,  i  n 

Governor,  powers  of,  in  relation  to 
State  administrative  law,  5 

Governors,  French  colonial,  open- 
ing of  credits  by,  96 

Habeas  Corpus,  as  remedy  for  ad- 
ministrative grievance,  5 

Hardenberg,  influence  of,  on  Prus- 
sian administrative  court  sys- 
tem, 136 

Hauriou,  M.,  discussion  of  juris- 
diction of  administrative  courts, 
136  n,  140  n 

Hesse,  administrative  court  in, 
135  n 

Imperial,  Chancellor,  German,  in- 
fluence of  over  Prussian  finance, 
no  n;  Court  of  Accounts,  Ger- 
man, 115;  Court  at  Leipzig, 
jurisdiction  of  over  conflicts  in 
German  state  courts,  134;  law, 
effect  of,  on  administrative  just- 
ice in  Prussia,  1 35-136,  influence 
of,  on  conflicts  in  German  state 
courts,  134 

Incidental    appropriations,    44 

Indemnity,  claims  in  France,  for 
injuries,  128,  129,  for  military 
requisition,  129,  under  purchas- 
ing contracts,  129 ;  law  in 
France,  91,  92,  108,  in  Prussia, 
114  n;  for  uncollected  taxes  in 
France,  98  n ;  for  violation  of 
contracts  by  French  Govern- 
ment, 129 

Indian  Affairs,  appropriations  for, 
38  n  ;  commissioner  of,  in  rela- 
tion to  Comptroller,  86,  87 

Indians,  Comptroller's  jurisdiction 
over  contracts  with,  84-87 

Indirect  Taxes,  administration  of, 
in  France,  98  n,  in  Prussia, 
no  ;  jurisdiction  of  French  civil 
courts  over,  126  n 


INDEX 


Individual  rights,  in  relation  to 
prerogative  in  United  States, 
141 

Industrial  regulation,  influence  of, 
on  judicial  work  of  administra- 
tion, 9,  10 

Injunction,  recourse  to  French 
Council  of  State  for,  127 

Injuries,  indemnity  claims  for,  in 
France,  128,  129 

Inspection,  duties  of  German 
Finance  Minister  concerning, 
1 08  n;  of  Finance,  general,  in 
France,  organization  and  work 
of,  1 02,  103,  Prussian  analogy 
to,  112  n,  Stourm's  views  on, 
103  n\  of  treasuries  in  Prussia, 
1 08  n 

Inspector  General  of  Finance  in 
France,  duties  of,  102,  103  n 

Insular,  Cases,  50-55 ;  Govern- 
ment, influence  of,  on  judicial 
work  of  administration,  9,  10 ; 
possessions,  mileage  for  sea 
travel  to  and  from,  63,  64 

Interest  on  public  debt,  status  of 
appropriations  for,  42 

Interior,  Department,  action  of, 
relative  to  Indian  contracts,  86; 
auditor  for,  created,  1894,  19  n; 
see  also  Minister,  Ministry  and 
Secretary 

Internal  Revenue,  Service,  judicial 
functions  in,  10;  Commissioner, 
in  relation  to  Comptroller,  35  n, 
57 

Interstate  Commerce  Commission, 
administrative  and  judicial 
functions  of,  9  n 

Irregularities  in  accounts,  see  Ac- 
counts 

Island  possessions,  see  Insular 

Judges,  constitutional  provisions 
on  tenure  of,  exemption  of  ter- 
ritorial courts,  9  n,  in  relation 
to  recess  appointments,  70 ;  sta- 
tus of  appropriations  for  salaries 
of,  42 

Judicial,  activities  vs.  adminis- 
trative, Anglo-Saxon  and  Conti- 
nental concepts  contrasted,  88- 
90,  117,  118;  activity  of  admin- 


istration, influences  affecting,  5- 
12,  141  ;  functions  of  Comp- 
troller, see  Comptroller ;  func- 
tions of  the  Interstate  Com- 
merce Commission,  gn;  review 
of  executive  acts,  limits  to, 
under  common  law,  4 

Judiciary,  American,  independence 
of,  2 

Jurisdiction,  of  Comptroller,  see 
Comptroller ;  administrative,  see 
Administrative 

Jurisdictional  disputes,  relation  of 
French  Council  of  State  to,  126, 
128 ;  see  also  Court  of  Conflicts 

Jurisprudence,  see  Administrative 
Jurisprudence 

Justice,  Anglo-Saxon  concepts  of, 
in  relation  to  Continental  insti- 
tutions, 1-3 ;  Minister  of,  see 
Minister  of  Justice 

King  of  Prussia,  see  Prussia, 
King  of 

Laferriere,  E.,  views  of,  on  rela- 
tion of  French  ministers  to  ad- 
ministrative courts,  140  n 

Land  Grant  Railroads,  83  n 

Land  Office,  accounts  of,  16  n,  son 

Landrat,  appointment  of,  121 

Law,  see  Administrative,  Civil, 
Common,  Governmental,  Im- 
perial, Official,  Public 

Lawrence,  First  Comptroller,  de- 
cision of,  in  "  Exporter "  case, 
55 ;  on  jursdiction  of  the  courts 
in  relation  to  Comptroller,  32 

Lebon,  views  of,  on  relation  of 
French  administration  to  courts, 
139  n 

Legal,  practice,  Anglo-Saxon  in  re- 
lation to  Continental  institu- 
tions, 1-5,  141  ;  technicality,  in- 
fluence of,  on  judicial  work  of 
administration,  5 

Legislature  in  relation  to  budget, 
in  France,  91,  94-97,  108 ;  in 
Germany,  116,  117;  in  Prussia, 
114  n;  in  the  United  States,  38, 
92  n  f,  97 

Legislatures,  territorial,  mileage  of 
members  in,  76,  77 


INDEX 


159 


Leipzig,  Imperial  court  at,  134 
Lighting,      concessions      for,      in 

France,    130 
Local    administrative    law    in    the 

United  States,  6 
Local    Government,    organs    of    in 

Prussia,  109  n;  see  also  Circle, 

Commune,    District,    Municipal, 

Province 

Local  treasuries  in  Prussia,  in 
Loi   de   reglement,   see   Indemnity 

law 
Lottery,     Prussian,     accounts     of, 

no  n 
Louisiana      Purchase      Exposition 

Law,      expense      cases      arising 

under,  77,  78 
Lowell,  A.  L.,  126  n,  137  n 

Madison,  James,  views  of,  on 
Comptroller's  duties,  14 

Mandamus,  as  remedy  for  admin- 
istrative grievance,  5 

Marbury,  recess  appointment  of, 
68,  69 

Marine,  French  Ministry  of,  un- 
authorized expenditure  in,  95  n 

Marshall,  Chief  Justice,  36 

Mayor  of  New  York  City,  in  rela- 
tion to  budget,  7  n ;  powers  of, 
compared  with  French  Prefect, 
6  n 

Mayors,  French,  modification  of 
taxes  by,  128  n 

McKinley  Tariff  Act,  constitution- 
ality of  bounty  provision  of,  34- 

Mileage  claims,  legal  status  of, 
62 ;  deductions  from,  63 ;  de- 
cisions of  Comptroller  concern- 
ing, 62-65,  76,  77 

Military,  affairs,  appropriations 
for,  38  n ;  requisitions,  indem- 
nity claims  for,  in  France,  129 ; 
disburement  cases,  59-67 

Mines,  Prussian,  accounts  of,  no 
n  f 

Mining,  concessions  for,  in  France, 
130 

Minister  of  Finance,  French,  du- 
ties of  concerning  pension 
claims,  130,  131  ;  general  finance 
account  of,  103  n;  nomination 


of  members  of  Court  of  Ac- 
counts by,  104  n ;  relation  of,  to 
budget,  94,  97  n,  102,  103  n, 
104,  to  controller  of  expendi- 
tures to  be  incurred,  97  n,  to 
director  of  general  movement  of 
funds,  102;  reports  to,  by  gen- 
eral inspector  of  finance,  103  n, 
by  commission  on  ministerial 
accounts,  104,  by  court  of  ac- 
counts, 1 06,  107 

Minister  of  Finance,  Prussian,  in- 
spection duties  of,  1 08  n;  rela- 
tion of,  to  Minister-President, 
no  n,  to  revisory  committee, 
132  n 

Minister-President,  Prussian,  in- 
fluence of,  over  finance,  no  n 

Minister  of  Interior,  French,  as 
Premier,  influence  of,  on  budget 
"  control,"  96 

Minister  of  Justice,  French,  as 
president  of  Council  of  State, 
122;  as  president  of  Court  of 
Conflicts,  126 

Ministers,  French,  as  judges,  139 
n  f,  jurisdiction  of  Council  of 
State  over  acts  of,  128,  pecuni- 
ary responsibility  of,  95 ;  Ger- 
man, parliamentary  irresponsi- 
bility of,  114  « 

Ministry,  of  Finance,  French, 
"control"  functions  of,  93-103, 
former  separation  of  ministry  of 
treasury  from,  23 ;  in  smaller 
German  States,  subordination  of 
"control"  organs  to,  115,  "6; 
Prussian,  "  control  "  function  of, 
108-111,  divisions  of,  109,  no 

Ministry  of  Foreign  Affairs, 
French,  supervision  of  accounts 
of,  100 

Ministry  of  Interior,  French,  de- 
partmental and  communal  ac- 
counts centered  in,  100;  diffi- 
culty of  controlling  expenditures 
in,  96 

Ministry  of  Marine,  French,  unau- 
thorized expenditures  of,  95  n 

Ministry,  public,  see  Public  Min- 
istry 

Ministry    of     Public     Instruction, 


i6o 


INDEX 


French,  supervision  of  accounts 
in,  100 

Ministry  of  Treasury,  French, 
former  separation  of,  from  Min- 
istry of  Finance,  23 

Ministry  of  War,  French,  super- 
vision of  accounts  in,  100 

Mint,  Prussian,  accounts  of,  non 

Mitchell,  Assistant  Comptroller, 
decision  of,  60,  61,  62  n,  64 

Montesquieu,  theory  of  separation 
of  the  powers,  American  and 
French  interpretation  of,  2,  3  n 

Morris,  Robert,  Superintendent  of 
Finance,  14  n 

Mortgages,  decisions  of  Comp- 
troller concerning  tax  on,  56,  57 

Municipal,  council,  French,  120  n', 
government,  administrative  ac- 
tivities of,  6,  7,  compared  with 
state  and  Federal  government, 
8  n,  administrative  law  in,  12, 
commission  form  of,  as  com- 
bining executive  and  legisla- 
ture, 7  n 

Napoleon,  creation  of  French 
Court  of  Accounts  by,  104 

National  Administration,  see  Fed- 
eral 

Naval  Affairs,  appropriations  for, 
38  n 

Navy,  Department,  accountant  cre- 
ated in,  15,  auditor  for,  created, 
1894,  19  n;  disbursement  cases, 

59-67 

New  York  Public  Service  Com- 
mission, as  illustrating  expan- 
sion of  state  administration,  6  n 

New  York  City,  mayor  of,  in  rela- 
tion to  budget,  7  n ;  powers  of, 
compared  with  French  Prefect, 
6  n 

Oberverwaltungsgericht,  see  Ad- 
ministrative Court,  Superior, 
Prussian 

Official,  law,  Dicey's  reference  to/ 
i  n ;  prerogative,  see  Govern- 
ment prerogative 

Officials,  public,  claims  of,  in 
France  and  Germany,  -see  Claims, 


adjudication  of ;  Prussian,  prop- 
erty rights  of,  against  state,  133 

Olney,  Attorney  General,  views  on 
jurisdiction  of  Comptroller,  25, 
26,  27  n 

Ordonnateurs,  nature  of  "  control  " 
over  in  France,  93-98,  107,  108; 
in  Prussia,  115,  116 

Oxnard  Beet  Sugar  Company  Case, 
35-37 

Patent    Office,    judicial    functions 

.    in,  10 

Paymaster-treasurers,   French,   99 

Payments,  to  government  officers, 
significance  of  Comptroller's 
jurisdiction  over,  80  ;  in  advance 
of  appropriations  in  French 
colonies,  96  n  ;  power  of  Secre- 
tary of  Treasury  to  suspend,  20 

Pension,  Bureau,  judicial  func- 
tions in,  10 ;  claims,  duties  of 
French  Finance  Minister  and 
Council  of  State  concerning,  130, 

131 

Pensions,  decisions  of  Comptroller 
concerning,  65,  67  n ;  in  France, 
legal  status  of,  130  n 

Permanent  Apropriations,  annual, 
41,  42  ;  specific,  41,  42,  43 

Philippine  Commission,  adminis- 
trative law  under,  9 

Police,  matters,  jurisdiction  of 
French  Council  of  State  over, 
127  ;  power,  6  n,  133 

Political  Science  in  United  States, 
concern  of,  with  constitutional 
side  of  public  law,  i 

Porto  Rican  customs  duties,  col- 
lection of,  50-53 

Porto  Rico,  apropriation  for  edu- 
cation, etc.,  in,  475  import  rev- 
enues, expenditure  of,  47,  4§ ; 
refund  of  duties  collected  in, 

50-54 

Postal  accounts,  procedure  on,  20  n 
Postmaster     General,     postal    bal- 
ances reported  to,  20  n 
Post    Office    Department,    auditor 
for,  17  n,  19  n;  policy  of  hold- 
ing funds   distinct,    20   n ;   reor- 
ganization act. of,   1836,   17  n 


INDEX 


161 


Post  offices  and  post  roads,  ap- 
propriations for,  38  n 

Prasidium,  of  Prussian  Superior 
Administrative  Court,  125 

Prefect,  French,  jurisdiction  of 
Council  of  State  over  acts  of, 
128  ;  powers  of,  compared  with 
mayor  of  New  York  City,  6  n ; 
as  president  of  council,  120  n 

Prefectural,  councils,  French,  as 
administrative  courts,  120;  ap- 
pellate jurisdiction  of  Council 
of  State  over,  127,  128;  indem- 
nity process  before,  98  n 

Premier,  French  Minister  of  In- 
terior as,  96 

Prerogative,  Government,  see  Gov- 
ernment 

President,  of  France,  annual  re- 
port of  Court  of  Accounts  to, 
107,  relation  of,  to  Council  of 
State,  122,  123;  of  French  Court 
of  Accounts,  see  Court  of  Ac- 
counts, organization  of ;  of  Prus- 
sian Chamber  of  Accounts,  see 
Chamber  of  Accounts,  Prussian, 
organization  of  ;  of  Prussian  dis- 
trict in  relation  to  district  com- 
mittee, 121  ;  of  Prussian  prov- 
ince, jurisdiction  of,  over  ac- 
counting service,  no;  of  the 
United  States,  appointment  of 
Comptroller  by,  10,  23,  24,  ap- 
pointments by,  status  when  un- 
confirmed by  Senate,  68-70,  po- 
sition of,  in  federal  administra- 
tion, 7,  relation  of  Secretary  of 
Treasury  to,  as  bearing  on 
Comptroller,  22  n 
Presidents  of  Senate  in  Oberver- 
waltungsgericht,  see  Administra- 
tive Court,  Superior,  Prussian, 
organization  of 

Private  Domain,  in  France,  129 
Procedure,  on  accounts,  changes  in 
1894,  19;  administrative,  in 
America  and  England,  5 ;  in 
French  Council  of  State,  123, 
124;  in  French  Court  of  Ac- 
counts, 104  n,  105,  106;  in 
Prussian  administrative  courts, 
125,  126;  in  Prussian  Chamber 


of  Accounts,  112,  113  n;  expense 
of,  in  relation  to  administrative 
law,  s,  ii>  141  ;  on  requisitions, 
20  n 

Province,  Prussian,  109  n 

Prussia,  administrative  jurispru- 
dence in,  119-122,  131-138; 
King  of,  appointment  of  Supe- 
rior Administrative  Court  by,  125, 
appointment  of  Landrat  by,  121, 
appointment  of  members  of  dis- 
trict council  by,  121,  report  to, 
114,  subordination  of  Chamber 
of  Accounts  to,  113  n;  treasury 
operations  in,  108-115;  see  also 
particular  topics 

Public,  expenditure,  Congressional 
committees  on,  92  n ;  instruc- 
tion, supervision  of  accounts  in 
French  Ministry  of,  100;  land 
accounts,  16  n,  20  n;  law,  con- 
cern with  constitutional  side  of, 
in  United  States,  i  ;  ministry  of 
French  Council  of  State,  123, 
of  French  Court  of  Accounts, 
104  n  f;  revenues,  decisions  of 
Comptroller  concerning,  49-58 ; 
Service  Commission,  New  York, 
6  n ;  utilities  in  France,  conces- 
sions for,  130;  works,  contro- 
versies concerning  prosecution 
of,  in  France,  129  ;  status  of  ap- 
propriations for,  42 

Purchasing  contracts  with  French 
Government,  enforceable  for 
cash  indemnity,  129 

Quo  Warranto  Writ,  as  remedy 
for  administrative  grievance,  5 

Railway    Commission,    Wisconsin, 

6  n 
Railways,      concessions      for      in 

France,  130;  Prussian,  accounts 

of,  no  n 

Receivers  of  taxes,  French,  99 
Recess   appointments,   decisions  of 

Comptroller    concerning,    68-70 ; 

salary  under,  as  affected  by  time 

vacancy  occurred,  68 
Refund  of  taxes,  illegally  collected, 

50-58 ;  see  also  Reimbursement 
Register   of   Treasury,    duties  pre- 


1 62 


INDEX 


scribed  by  secretary,  20  « ; 
under  resolutions  of  1781,  13  n 

Regulative  functions  of  State,  in- 
fluence of,  on  administrative 
law,  5 

Reichstag,  German,  report  of 
Court  of  Accounts  to,  115;  see 
also  Legislature. 

Reimbursement,  for  traveling  ex- 
penses, 77-80 ;  see  also  Refund 

Reinhart,  J.  W.,  18  « 

Report  of  1816,  on  accounting,  16 

Reports  of  Comptroller,  influence 
of  publication  of,  24 

Requisitions,  procedure  concern- 
ing, 20  n 

Retrenchment,  committee  on,  1842, 

17 

Revenue,  cases,  Comptroller's  juris- 
diction over,  significance  of,  49, 
58,  as  influenced  by  court  de- 
cisions, 49,  influence  of  new 
forms  of  taxation  on,  49,  50, 
resulting  from  Spanish  War,  50- 
58 ;  public,  decisions  of  Comp- 
troller concurring,  49,  58 ;  serv- 
ice in  Prussia,  no;  see  also  In- 
ternal revenue 

Rivers  and  Harbors,  appropriations 
for,  38  n 

Salaries  of  Judges,  status  of  ap- 
propriations for,  42 

Salary,  claims  in  France,  128,  130; 
under  recess  appointment,  in  re- 
lation to  time  vacancy  occurred, 
68 ;  see  also  Services 

Saxony,  organs  of  control  in,  n6r; 
administrative  courts  in,  135  n 

Second  Comptroller,  see  Comp- 
troller 

Secretary,  of  the  Interior,  rela- 
tion of  Comptroller  to,  concern- 
ing Indian  contracts,  86,  87 ;  of 
the  Treasury,  duties  of,  as  Fi- 
nance Minister,  23,  power  to  re- 
fund taxes,  51-54,  functions  of, 
distinguished  from  those  of 
Comptroller,  22,  power  of,  to 
suspend  payment,  20,  relation  of 
Comptroller  to,  10,  22-24,  27> 
status  of  reports  to  Congress, 
92  n 


Senate,  French,  report  of  Court  of 
Accounts  to,  107;  see  also  Leg- 
islature, French 

Senate,  United  States,  amendment 
of  appropriation  bills  by,  38  n ; 
appointments  as  affected  by 
failure  of,  to  confirm,  68-70 ; 
committee  on  organization,  con- 
duct and  expenditure  of  execu- 
tive departments,  93  n ;  mem- 
bers of  Dockery  Commission, 
18;  resolutions  of  1816,  on  ac- 
counting reform,  16 

Senates  of  Prussian  Superior  Ad- 
ministrative Court,  125 

Separation  of  Powers,  Theory  of, 
2 ;  American  vs.  French  inter- 
pretation, 3  n,  136 

Service,  in  Spanish  War,  extra  pay 
for,  60 

Services,  Comptroller's  jurisdic- 
tion over  disbursements  for,  59- 
80  ;  of  indefinite  duration,  status 
of  appropriations  for,  42 

Settlements,  of  disbursing  officers, 
delays  in,  18 

Sherman,  John,  letter  concerning 
availability  of  appropriations, 
43  n 

Shortages,  see  Accounts,  irregu- 
larities in 

Sinking  Fund,  dues  to,  status  of 
appropriation  for,  42 

Smithsonian  Institution,  status  of 
appropriations  for,  42 

Soldiers,  bounty  and  pension 
claims  of,  65,  removal  of  de- 
sertion charges  in  relation  to, 
65-67;  extra  pay  of,  for  serv- 
ices in  Spanish  War,  60 

Solicitor,  office  of,  created,  1830, 
17  n 

Spanish  War,  availability  of  ap- 
propriation for,  48;  extra  pay 
for  service  in,  60;  revenue  cases 
arising  from  territorial  acqui- 
sitions of,  50-55,  under  revenue 
measure  of  1898,  55~57 

State,  administrative  law,  influence 
of  regulative  functions  on,  5, 
development  of,  5,  6,  12,  in  re- 
lation to  powers  of  governor,  5  ; 
and  other  departments,  auditor 


INDEX 


lor,  created,  1894,  19  n  ;  govern- 
ment, administrative  activities 
of,  6,  7,  compared  with  munic- 
ipal and  Federal  governments, 
8  n 

Stein,  influence  of,  on  Prussian  ad- 
ministrative court  system,  136 

Sternberg,  Surgeon  General  George 
M.,  case  of,  concerning  mileage, 
63,  64 

Stourm,  Rene,  views  of,  on  gen- 
eral inspection  of  finance,  103  n 

Subsistence,  decision  of  Comp- 
troller on  per  diem  allowance 
for,  77-80 ;  and  traveling  ex- 
penses, distinction  between,  78, 
79 

Sugar  Bounty  Case,  34~37,  47,  49  n 

Superintendent  of  Finance,  13  n, 
14  n 

Superior  Administrative  Court, 
Prussian,  see  Administrative 
court 

Supreme  Court,  United  States,  ap- 
pellate jurisdiction  of,  over 
claims,  31  ;  decision  on  clerk  of 
court  fees,  71,  Insular  Cases, 
50,  powers  of  Board  of  General 
Appraisers,  52,  Sugar  Bounty 
Case,  36 ;  decisions  of,  binding 
on  Comptroller,  33,  37 

Surplus  Fund,  provision  for  car- 
rying balances  to,  43  n 

Swartwout  Defalcations,  17  n 

Taxation,  influence  of  new  forms 
of,  on  revenue  cases,  49,  50 

Taxes,  administration  of,  in 
France,  98  n,  in  Prussia,  no, 
132;  claims  on  account  of,  in 
France,  128,  in  Prussia,  132, 
for  refund  of,  50-58  ;  collection 
of,  by  army  in  Porto  Rico,  50, 
in  France,  98,  99,  in  Prussia, 
1 08  n,  132  ;  controversies  con- 
cerning, in  France,  128;  direct, 
appeals  before  departmental  di- 
rector of,  in  France,  128  n;  in- 
direct, jurisdiction  of  Prussian 
civil  courts  over,  126  n  ;  modifi- 
cation of  by  mayors,  in  France, 
128  n  ;  new  forms  of,  in  Spanish 
War  revenue  measure  of  1898, 


55-57  5  power  of  Secretary  of 
Treasury  to  refund,  51-54;  re- 
ceiver of,  in  France,  99 

Tenure,  of  Comptroller,  14;  of 
federal  Judges,  constitutional 
provisions  concerning,  9  n,  70  ; 
in  French  Council  of  State,  138; 
in  French  Court  of  Accounts, 
104  n  ;  in  Prussian  Chamber  ot 
Accounts,  in,  112 

Territorial,  courts,  tenure  of,  9  n ; 
legislatures,  mileage  of  members 
in,  76,  77 

Tracewell,  Comptroller,  decision 
of,  concerning  brokers,  56 ;  con- 
tracts, 82 ;  fees,  72,  73 ;  lan- 
guage constituting  an  appro- 
priation, 40 ;  recess  appoint- 
ments, 69,  70 

Tramways,  concessions  for,  in 
France,  130 

Transportation  contracts,  83  n 

Travelling  expenses,  and  subsist- 
ence, distinction  between,  78, 
79 ;  decision  of  Comptroller  con- 
cerning reimbursement  of,  77- 

79 

Treasurer,  under  resolutions  of 
1778  and  1781,  13  n;  -Paymaster, 
general,  in  France,  99  ;  prior  to 
resolution  of  1778,  13  n 

Treasuries,  inspection  of,  in  Prus- 
sia, 1 08  n  ;  local  and  district,  in 
Prussia,  in 

Treasury,  Act  of  1781,  13,  of 
1789,  14,  of  1817,  16,  of  1894, 
19 ;  administration  in  Prussia, 
109-111;  board,  13  n,  14  n; 
committee  for  supervising,  1 3  n  ; 
department,  auditor  for,  created, 
1894,  19  n;  inspection  in  Prus- 
sia, 1 08  n;  judicial  functions  in, 
10,  n  ;  ministry  of,  see  Minis- 
try, of  Treasury;  office  of  ac- 
counts prior  to  resolution  of 
1778.  13  w  ;  operations,  opinions 
of  Attorney  General  on,  25,  in 
France,  91-108,  in  Germany, 
108-117,  in  Prussia,  108-115; 
Secretary  of,  see  Secretary  :  or- 
ganization, Comptroller  as  direc- 
tor of,  10,  89 

Treaty,  claims,  Indian,  against  the 


164 


INDEX 


United  States,  84;  of  Paris,  51 
Tunis  expedition,  96  n 

Unconstitutional  Acts,  status  of, 
36  n 

Vacancies,  time  of  occurring  in 
relation  to  salary  under  recess 
appointment,  68 

Virements,  see  Budget,  French 

War,  Department,  accountant  cre- 
ated in,  15,  auditor  for,  created 
1894,  19  n  ;  of  1812,  collapse  of 
finance  administration  during, 
16:  Ministry  of,  see  Ministry, 
of  War ;  Spanish,  see  Spanish 
War 


Warrants,  power  to  sign,  1817, 
1822,  1 6  n  f  ;  Estimates  and  Ap- 
propriations, Division  of,  20  n  ; 
urgency,  in  France.  96 

Ways  and  Means,  committee,  fi- 
nance powers  of,  23 

Wilson  Act,  effect  on  bounty  pro- 
vision, 34 

Wisconsin  Railway  Commission, 
as  illustrating  expansion  of  state 
administration,  6  n 

WTrits,  quo  warranto,  mandamus 
and  habeas  corpus  as  remedies 
for  administrative  grievance,  5 

Wiirtemberg,  administrative  courts 
in,  135  n  ;  organs  of  control  in, 
115,  n6 


THXS 


DATB 


AN  INITIAL  FINE  OF  25  CENTS 


OVERDUE. 


8  193? 


LD  21-100m-8,'34 


YC  23143 


f. 

227069 


